National Organic Program (NOP); Organic Livestock and Poultry Standards, 48562-48595 [2022-16980]
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Federal Register / Vol. 87, No. 152 / Tuesday, August 9, 2022 / Proposed Rules
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 205
[Doc. No. AMS–NOP–21–0073]
RIN 0581–AE06
National Organic Program (NOP);
Organic Livestock and Poultry
Standards
Agricultural Marketing Service,
USDA.
ACTION: Proposed rule.
AGENCY:
The United States Department
of Agriculture’s (USDA) Agricultural
Marketing Service (AMS) proposes to
amend the organic livestock and poultry
production requirements by adding new
provisions for livestock handling and
transport for slaughter and avian living
conditions; and expanding and
clarifying existing requirements
covering livestock care and production
practices and mammalian living
conditions.
DATES: Comments must be received by
October 11, 2022.
AMS will host a virtual listening
session on August 19, 2022, from 12:00
p.m. to approximately 2:00 p.m. Eastern
Time (ET) to hear comments regarding
this proposed rule. The deadline to
register for oral comment is 11:59 p.m.
ET, August 15, 2022. Access
information will be published on the
AMS website prior to the listening
session at https://www.ams.usda.gov/
event/listening-session-organiclivestock-and-poultry-standards.
ADDRESSES: Interested persons may
comment on this proposed rule using
one of the following methods:
Oral Comments: Each commenter
wishing to address AMS must preregister by 11:59 p.m. ET on August 15,
2022. Each commenter will be allotted
a speaking slot during the virtual
listening session. Instructions for
registering for the listening session can
be found at https://www.ams.usda.gov/
event/listening-session-organiclivestock-and-poultry-standards.
Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting written
comments. The deadline to submit
written comments is 11:59 p.m. ET,
October 11, 2022.
Mail: AMS strongly prefers comments
be submitted electronically. However,
written comments may be submitted
(i.e., postmarked) via mail to Erin Healy,
MPH., Director Standards Division,
National Organic Program, USDA–
AMS–NOP, Room 2646-So., Ag Stop
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SUMMARY:
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0268, 1400 Independence Ave. SW,
Washington, DC 20250–0268. Mailed
comments must be postmarked by
October 11, 2022.
Transcript: The listening session will
be recorded, and a transcript will be
posted on the AMS website and on
https://www.regulations.gov (search for
docket ‘‘AMS–NOP–21–0073’’)
following the session.
Meeting Accommodations: The
listening session will be held virtually.
If you are a person requiring a
reasonable accommodation, please make
requests by the registration deadline
(which is 11:59 p.m. ET on August 15,
2022) for sign language interpretation or
other reasonable accommodation to the
person listed under FOR FURTHER
INFORMATION CONTACT. Determinations
for a reasonable accommodation will be
made on a case-by-case basis.
Instructions: All submissions received
must include the agency name and
docket number or Regulatory
Information Number (RIN) for this
rulemaking. All comments received will
be posted without change to https://
www.regulations.gov, including any
personal information provided. For
detailed instructions on sending
comments and additional information
on the rulemaking process, see the
‘‘What Should I Consider as I Prepare
My Comments for AMS?’’ heading of the
SUPPLEMENTARY INFORMATION section of
this document.
Docket: For access to the docket,
including background documents and
comments received, go to https://
www.regulations.gov (search for docket
‘‘AMS–NOP–21–0073’’). Comments
submitted in response to this proposed
rule will also be available for viewing in
person at USDA–AMS, National Organic
Program, Room 2646-South Building,
1400 Independence Ave. SW,
Washington, DC, from 9 a.m. to 12 noon
and from 1 p.m. to 4 p.m., Monday
through Friday (except official Federal
holidays). Persons wanting to visit the
USDA South Building to view
comments received in response to this
proposed rule are requested to make an
appointment in advance by calling (202)
720–3252.
FOR FURTHER INFORMATION CONTACT: Erin
Healy, MPH, Director of Standards
Division, Telephone: (202) 720–3252;
Email: erin.healy@usda.gov.
Executive Summary
A. Purpose of the Proposed Rule
AMS is writing this proposed rule to
clarify and ensure consistent
application of the USDA organic
standards and therefore mitigate
information asymmetries and associated
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costs amongst certifying agents,
producers, and consumers. This action
will augment the USDA organic
livestock production regulations with
clear provisions to fulfill the purposes
of the Organic Foods Production Act
(OFPA) (7 U.S.C. 6501–6524): to assure
consumers that organically produced
products meet a consistent, uniform
standard and to further facilitate
interstate commerce of organic
products. OFPA mandates that detailed
livestock regulations be developed
through notice and comment
rulemaking (7 U.S.C. 6509(g)) and
USDA did so when it published the
final rule on the National Organic
Program (65 FR 80547; December 21,
2000). In 2010, AMS published a final
rule (75 FR 7154; February 17, 2010)
clarifying the pasture and grazing
requirements for organic ruminant
livestock. This proposed rule would
provide clarity for the production of
organic livestock and poultry, consistent
with recommendations provided by
USDA’s Office of Inspector General and
nine separate recommendations from
the National Organic Standards Board
(NOSB).
B. Summary of Provisions
This proposed rule would update the
USDA organic regulations for livestock
production. The proposed changes
would address a range of topics related
to the care of organic livestock,
including:
Livestock health care practices—the
proposed rule would specify which
physical alteration procedures are
prohibited or restricted for use on
organic livestock. The proposed
livestock health care practice standards
include requirements for euthanasia to
reduce suffering of any sick or disabled
livestock;
Living conditions—this proposed rule
would set separate standards for
mammalian and avian livestock living
conditions to better reflect the needs
and behaviors of the different species, as
well as related consumer expectations.
The proposed mammalian livestock
standards would cover both ruminants
and swine. The proposed avian
livestock living standards would set
maximum indoor and outdoor stocking
densities to ensure the birds have
sufficient space to engage in natural
behaviors;
Transport of animals—this proposed
rule would add new requirements on
the transport of organic livestock to sale
or slaughter;
Slaughter—this proposed rule would
add a new section to clarify how organic
slaughter facility practices and USDA
Food Safety and Inspection Service
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(FSIS) regulations work together to
support animal welfare.
C. Costs and Benefits
Much of the proposed rule focuses on
clarifying and codifying existing
practices, and AMS assumes no costs or
benefits are accumulated for those
changes. We do expect costs and
benefits to occur in broiler production
through increased indoor space for
broilers and in egg production through
increased outdoor access for layers. In
summary, AMS estimates that the rule
would increase discounted net benefits
between $99 million and $119 million
annually. This range spans three
producer response scenarios, two
implementation periods for the outdoor
space requirements, and a no-rule
scenario (see Table 1, Table 2, and Table
3).
TABLE 1—EXECUTIVE SUMMARY: COSTS AND BENEFITS FOR EGGS AND BROILERS
Proposed rule
(5-year compliance—No
Growth)
Proposed rule
(5-year compliance—Growth)
Proposed rule
(15-year compliance)
Proposed rule
Eggs
(per dozen)
Eggs
(per dozen)
Eggs
(per dozen)
Broilers
(per pound)
Benefits (Consumer Willingness to Pay) .........................................................
Benefits with 80% Breaker Egg Adjustment ....................................................
Cost (Change in Average Total Cost of Production) .......................................
Net Benefit per Unit .........................................................................................
20-Year Annualized Net Benefits (3%) ($1,000) .............................................
20-Year Annualized Net Benefits (7%) ($1,000) .............................................
0.21
0.16
0.05
0.11
10,429
9,236
0.21
0.16
0.05
0.11
18,757
16,132
Average Discounted Domestic Information Collection Cost ....................
........................
........................
AMS estimates that the discounted
costs for layer operations would range
between $3.6 million and $8.4 million
annually. To monetize the benefits of
this rule, AMS used research that
measured consumers’ willingness-topay for outdoor access at a premium of
between $0.16 and $0.25 per dozen
eggs, controlling for other factors,
including the organic label. Based on
0.21
0.16
0.05
0.11
10,278
8,027
0.34
........................
0.02
0.32
101,011
91,418
$194,777
this, AMS estimates the annually
discounted benefits falling between
$11.6 million to $27.1 million.1
TABLE 2—EXECUTIVE SUMMARY OF ANNUALIZED DISCOUNTED NET BENEFITS FOR EGGS
[Thousands of $]
No rule
Discount rate
3%
Growth prevented and exit
in year 6
(5-year co-proposal)
Growth and exit in year 6
(5-year co-proposal)
7%
$0.00
0.00
0.00
Growth and exit in year
16
(15-year co-proposal)
3%
7%
3%
7%
3%
7%
$15,651
5,222
10,429
$13,860
4,625
9,236
$27,110
8,352
18,757
$23,315
7,183
16,132
$14,858
4,580
10,278
$11,605
3,578
8,027
Annualized Benefits ..........................................
Annualized Costs ..............................................
Annualized Net Benefits ....................................
$0.00
0.00
0.00
AMS estimates that the total annual
discounted costs for broiler compliance
would be between $5.7 million and $6.3
million. The benefits for broilers are
calculated using a willingness-to-pay at
a premium of $0.34/lb. With this
willingness-to-pay, the annual
discounted benefits range between $97
million and $107 million.2
TABLE 3—EXECUTIVE SUMMARY OF ANNUALIZED DISCOUNTED NET BENEFITS FOR BROILERS
[Thousands of $]
Broiler
Discount rate
No rule
3%
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Annualized Discounted Values:
Benefits .....................................................................................................
Costs .........................................................................................................
Net Benefits ..............................................................................................
1 These ranges capture the discounted high and
low estimates across all three layer scenarios, which
vary in use of growth and implementation time. All
three of the layer models account for approximately
50% of initial production leaving due to difficulty
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7%
$0.00
0.00
0.00
for some pit-litter and aviary houses to comply with
the proposed requirements, if finalized.
2 The broiler model assumes that all broiler
production is able to comply with the rule because
of the prevalence of single story housing and
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With rule
3%
$0.00
0.00
0.00
$107,295
6,284
101,011
7%
$97,105
5,687
91,418
existing land near production houses. Therefore,
exiting is not considered in the broiler model and
a standard 3-year compliance is used with growth
continuing at the historic average.
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SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Information
A. Does this proposed action apply to me?
B. What should I consider as I prepare my
comments for AMS?
II. Background
A. Current Organic Livestock Standards
B. NOSB Recommendations
C. AMS Policy, Regulatory History, and
Withdrawal
D. Related Issues
III. Overview of Proposed Amendments
A. Definitions
B. Livestock Care and Production Practices
Standard
C. Mammalian Livestock Living Conditions
D. Avian Living Conditions
E. Transport and Slaughter
F. Slaughter Requirements
IV. Related Documents
V. Executive Orders 12866 and 13563—
Executive Summary
VI. Executive Order 12988
VII. Executive Order 13175
VIII. Paperwork Reduction Act
IX. Civil Rights Impact Analysis
List of Subjects in 7 CFR Part 205
I. General Information
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A. Does this proposed action apply to
me?
You may be affected by the proposed
action if you are engaged in the meat,
egg, poultry, dairy, or animal fiber
industries. Potentially affected entities
may include, but are not limited to:
• Individuals or business entities that
are considering organic certification for
a new or existing livestock farm or
slaughter facility;
• Existing livestock farms and
slaughter facilities that are currently
certified organic under the USDA
organic regulations; and
• Certifying agents accredited by
USDA to certify organic livestock
operations and organic livestock
handling operations.
This listing is not intended to be
exhaustive, but identifies key entities
likely to be affected by this action. Other
types of entities could also be affected.
To determine whether you or your
business may be affected by this action,
you should carefully examine the
proposed regulatory text. If you have
questions regarding the applicability of
this action to a particular entity, consult
the person listed under FOR FURTHER
INFORMATION CONTACT.
B. What should I consider as I prepare
my comments for AMS?
Specifically, AMS seeks comment on
the following topics:
1. Do the proposed amendments
provide enough clarity to farmers,
handlers, and certifying agents to be
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able to comply with the proposed
requirements?
2. Do the assumptions and estimates
outlined in the Regulatory Impact
Analysis and Regulatory Flexibility
Analysis accurately reflect the current
practices and production rates among
organic poultry and egg producers?
Specifically, to what degree do the
proposed requirements align with thirdparty animal welfare certification
programs and current industry
practices? Are assumptions about
welfare surplus valid? Is the period of
analysis and the estimates about the
useful life of a poultry house
appropriate? Are AMS’s benefit
estimates for broilers appropriate? Are
AMS’s cost estimates for small
producers accurate? Are AMS’s
estimates for the paperwork burden
accurate?
3. Do the proposed amendments to
§ 205.239 related to mammalian
livestock reflect current practices among
organic mammalian livestock producers
or impose new requirements on these
operations?
4. What is an appropriate and feasible
implementation timeframe for the
proposed changes? Specifically, AMS
seeks comment on the following
implementation approach and
timeframes:
(a) One year for all proposed changes,
except for the indoor space
requirements for broiler operations and
the outdoor space requirements for layer
operations;
(b) Three years for the indoor space
requirements for broilers; and
(c) Outdoor space requirements for
layers (three options):
Option 1: Layer operations certified at
the time of the rule’s effective date
(typically 60 days after publication) or
within three years of the effective date
will have five years to comply with the
rule’s outdoor space requirements
concerning stocking density, exit doors,
soil, and vegetation. Those operations
certified more than three years after the
rule’s effective date will need to comply
with all of the rule’s outdoor access
requirements immediately; or
Option 2: Layer operations certified at
the time of the rule’s effective date will
have 15 years to comply with the rule’s
outdoor space requirements concerning
stocking density, exit doors, soil, and
vegetation. Fifteen years was selected in
order to allow previously built facilities
to fully depreciate under the Internal
Revenue Service (IRS) depreciation
schedule. New entrants certified within
three years of the rule being effective
must comply with the outdoor space
requirements within five years of the
effective date. Those operations certified
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more than three years after the rule’s
effective date will need to comply with
all of the rule’s outdoor access
requirements immediately.
Option 3: AMS seeks comments on
alterative timeframes to those presented
above for the outdoor space
requirements for layer operations,
including justification for alternatives
and data on the costs and benefits.
These options and their costs and
benefits are discussed below in Section
V (‘‘Executive Orders 12866 and
13563—Executive Summary’’). Detailed
information can be found in the
Regulatory Impact Analysis for this
proposed rule.
II. Background
This proposed rule addresses health
care, transport, slaughter, and living
conditions for organic livestock.
Furthermore, the provisions for outdoor
access for poultry have a long history of
agency and NOSB actions and are a
focal issue in this proposed rule.
Outdoor access practices, particularly
for organic layers, vary among certified
operations: some operations provide
large, open-air outdoor areas, while
other operations provide minimal
outdoor space or use screened, covered
enclosures commonly called ‘‘porches’’
to provide outdoor space. An audit
conducted by the USDA Office of the
Inspector General (OIG) identified
inconsistencies in certification practices
regarding the use of porches as outdoor
space.3 To address this finding, AMS
issued draft guidance 4 but determined
that rulemaking was preferable to
resolve the divergent outdoor access
practices for organic poultry. To assist
with the rulemaking, the NOSB
developed a series of recommendations
to clarify organic livestock health care,
transport, slaughter, and living
conditions, including outdoor access for
poultry. The NOSB deliberation process
revealed broad support within the
organic community and consumer
expectations for specific guidelines for
meaningful outdoor access for
organically-produced poultry.
A. Current Organic Livestock Standards
The purpose of the OFPA, 7 U.S.C.
6501 et seq., is to ‘‘to establish national
3 USDA, Office of the Inspector General. March
2010. Audit Report 01601–03-Hy, Oversight of the
National Organic Program. Copies may be available
at https://www.usda.gov/oig/reports/audit-reports
or by contacting the Office at https://www.usda.gov/
oig/foia. A copy of the report is also available in
the docket for this proposed rule and can be found
be searching for the docket number ‘‘AMS–NOP–
21–0073’’ at https://www.regulations.gov/.
4 On October 13, 2010, AMS published a Notice
of Availability of Draft Guidance and Request for
Comments in the Federal Register (75 FR 62693).
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standards governing the marketing of
certain agricultural products as
organically produced products’’; ‘‘assure
consumers that organically produced
products meet a consistent standard’’;
and ‘‘facilitate interstate commerce in
fresh and processed food that is
organically produced.’’ 7 U.S.C. 6501.
To that end, Congress broadly
authorized the Secretary of Agriculture
to promulgate and implement
regulations related to the national
organic program. 7 U.S.C. 6506(a)(11).
AMS administers the National
Organic Program (NOP), which oversees
the development and implementation of
the national standards for the
production, handling, and marketing of
organically produced agricultural
products. OFPA at 7 U.S.C. 6509, among
other sections, authorizes the USDA to
develop and implement regulations
regarding standards for organic livestock
products. 7 U.S.C. 6509(g). Furthermore,
OFPA authorizes the creation of the
NOSB to advise USDA about the
implementation of standards and
practices for organic production. 7
U.S.C. 6518.
The NOSB is a 15-member Federal
Advisory Board appointed by the
Secretary of Agriculture that meets in
public twice annually. OFPA specifies
the composition of the NOSB and
reserves four NOSB seats for producers/
growers and two seats for handlers/
processors. The NOSB solicits public
comment on topics related to the USDA
organic regulations to inform its public
deliberations and decision making at
public meetings. If AMS agrees with an
NOSB recommendation, a
recommendation to amend the USDA
organic regulations must be
implemented through the notice-andcomment rulemaking process. A
summary of the NOSB
recommendations on livestock
production practices follows in the
NOSB RECOMMENDATIONS section.
Consistent with the Secretary’s
authority to promulgate regulations for
organic livestock products, 7 U.S.C.
6509, USDA organic regulations include
broad and general requirements for
ensuring the living conditions
associated with certified organic
livestock. For example, the USDA
organic regulations currently require
organic producers to provide year-round
access to the outdoors, shade, shelter,
exercise areas, fresh air, clean drinking
water, and direct sunlight (7 CFR
205.239(a)(1)). For all livestock, the
regulations also require: (1) An
environment that allows animals to
express natural behaviors; (2) preventive
health care to reduce the likelihood of
illness; and (3) protection from
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conditions that jeopardize an animal’s
well-being, such as predators and
adverse weather.
USDA-accredited certifying agents
inspect organic operations and decide
whether the operation’s practices
comply with the USDA organic
regulations. Certifying agents must
consider site-specific conditions,
including prevalent pests and diseases,
weather, and natural resources of the
operation when determining the
acceptability of a particular
management practice. Certifying agents
must also determine if organic
operations provide ‘‘access to the
outdoors’’ in a manner that meets the
current requirements. 7 CFR
205.239(a)(1). This flexibility results in
significant variation in the manner by
which producers meet the requirements.
For example, in organic poultry
production, producers meet the
requirement for outdoor access by
providing animals with extensive
pasture and also by providing a small
roofed enclosure (including porches
with no access to soil or vegetation). To
complicate the assessment of access to
the outdoors, a certifying agent
generally only inspects an organic
operation during limited and discrete
periods of time.
The disparities in amount and quality
of outdoor access have economic
implications for producers. This
disparity also increases consumer
search costs and has been identified by
USDA as a possible consumer welfare
loss.5 Consumer welfare loss could
result in reduced confidence in and
demand for organic eggs, as the organic
label may inconsistently signal its
attributes and provide less-consistent
value. This may create additional search
costs as consumers seek to understand
and choose the marketing claim or label
that most closely matches their
preferences. In addition, a growing body
of research shows that outdoor and
pasture access encourages foraging and
supports the natural behaviors of
livestock and poultry. These behaviors
may be positively associated with
improved health and well-being, may be
better for the environment, and may
result in healthier livestock products for
human consumption and poultry.6 7
5 Mojduszka, Eliza M. (2018) ‘‘An Analysis of the
Specialty Egg Market: Hedonic Price with Fixed
Brand Effects vs. Random Coefficient Discrete
Choice Model.’’ https://www.usda.gov/sites/default/
files/documents/Mojduszka%202018%20An%20
Analysis%20of%20the%20
Specialty%20Egg%20Market.pdf.
6 Is Grassfed Meat and Dairy Better for Human
and Environmental Health? Frederick D. Provenza,
Scott L. Kronberg, and Pablo Gregorini, Front Nutr.
2019; 6: 26. https://www.ncbi.nlm.nih.gov/pmc/
articles/PMC6434678/.
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To resolve the divergence in practices
under the organic label, the NOSB,
organic trade groups, and consumer
groups have asked AMS through
multiple public meetings and public
comment periods to revise the organic
regulations.
The organic regulations also include
more specific requirements for livestock
production. These have existed since
publication of the USDA organic
regulations in December 2000 (65 FR
80547) and have been revised
intermittently. Additional specificity
was added by a 2010 final rule (75 FR
7153; 76 FR 26927) to require that
ruminants, specifically, graze at least
120 days per year and receive 30
percent of dry matter intake from
grazing (7 CFR 205.239) and to describe
situations that warrant denying
ruminants access to pasture or the
outdoors (e.g., for newborn dairy cattle
up to six months) (7 CFR 205.239(c)(2)).
This proposed rule seeks to similarly
elaborate on the current regulations,
especially for avian species and
mammalian, non-ruminant livestock.
For example, the proposed rule
elaborates on the current requirements
for year-round access to the outdoors,
fresh air, and direct sunlight by
including requirements for outdoor
space (per bird), establishing thresholds
for ammonia gas, and requiring doors in
poultry houses to ensure all birds may
access the outdoors. The proposed rule
also elaborates on current standards (7
CFR 205.239) related to situations that
may warrant temporary confinement of
animals.
B. Prior NOSB Recommendations
Between 1994 and 2011, the NOSB
made nine recommendations regarding
livestock health care and welfare in
organic production. Between 1997 and
2000, AMS issued two proposed rules
and a final rule regarding national
standards for the production and
handling of organic products, including
livestock and their products. The NOSB,
as well as members of the public,
commented on these rules with regard
to the health care and welfare of
livestock. The key actions from that
period that have led to the development
of the existing standards on organic
livestock are summarized below.
(1) In June 1994, the NOSB
recommended a series of provisions to
address the care and handling of
livestock on organic farms. Within this
recommendation, the NOSB developed
7 Phillips HN, Heins BJ. Effects of Outdoor
Stocking Density on Growth, Feather Damage and
Behavior of Slow-Growing Free-Range Broilers.
Animals (Basel). 2021;11(3):688. https://
www.ncbi.nlm.nih.gov/pmc/articles/PMC7998225/.
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much of the framework for organic
health care and welfare of livestock,
including health care standards, living
conditions, and transportation of
livestock practices.
(2) In April and October 1995, the
NOSB made a series of
recommendations as addendums to the
June 1994 recommendations. These
recommendations further addressed
various health care practices, a
requirement for outside access, and the
use of vaccines.
(3) On December 16, 1997, AMS
responded to the 1994 and 1995 NOSB
recommendations in a proposed rule to
establish the NOP (62 FR 65850).
Consistent with the NOSB’s
recommendation, the proposed language
would have required that organic
livestock producers develop a
preventive health care plan and use
synthetic drugs only if preventive
measures failed. The 1997 proposed rule
also included standards for livestock
living conditions, including when
livestock would be permitted to be
confined. This proposed rule was not
finalized.
(4) In March 1998, the NOSB
reaffirmed its earlier recommendations
on livestock health care and living
conditions. The 1998 NOSB
recommendation also stressed the
importance of treating sick livestock by
recommending that any organic
producer who did not take specified
actions to provide care for a diseased
animal would lose certification. This
recommendation also included
provisions to clarify when livestock
could be confined indoors and defined
‘‘outdoors’’ as having direct access to
sunshine.
(5) On March 13, 2000, AMS
published a second proposed rule to
establish the National Organic Program
(65 FR 13512). AMS responded to the
NOSB’s March 1998 recommendation
on livestock health care and living
conditions in this proposed rule. AMS
proposed that organic producers must
use disease prevention practices first,
then approved synthetic medications
only if preventive measures failed.
However, a producer would need to use
all appropriate measures to save the
animal even if the animal lost organic
status. In addition, AMS proposed that
the living conditions for organic
livestock must maintain the health of
the animals and allow for natural
behaviors, including access to the
outdoors.
(6) On December 21, 2000, AMS
published a final rule establishing the
USDA organic regulations (65 FR 80548)
(‘‘NOP Rule’’). Through this action,
AMS finalized the standards for health
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care practices and livestock living
conditions. This rule addressed a range
of matters related to organic livestock
production, including organic feed; use
of hormones and supplements;
measures to avoid disease and illness;
veterinary biologics, medications,
synthetic parasiticides, and other drugs;
and general principles governing
housing, pasture conditions, sanitation
practices, and physical alterations. The
Rule also generally required producers
to provide organic livestock with
‘‘access to the outdoors, shade, shelter,
exercise areas, fresh air, and direct
sunlight suitable to the species, its stage
of production, the climate, and the
environment,’’ but allowed producers to
satisfy those baseline criteria in
different ways. That rule became
effective on February 20, 2001, and was
fully implemented on October 21, 2002.
(7) In May 2002, the NOSB again
addressed outdoor access, stating this
should include open air and direct
access to sunshine.8 In addition, the
May 2002 recommendation stated that
bare surfaces other than soil do not meet
the NOP Rule’s intent of outdoor access
for poultry. This recommendation also
included clarifications as to when
livestock could be temporarily confined.
(8) In March 2005, the NOSB
recommended that the temporary
confinement provision for ‘‘stage of
production’’ be changed to ‘‘stage of
life.’’ 9 The NOSB reasoned that
confinement for a ‘‘stage of life’’ would
limit producers from confining animals
for long periods, such as confinement
during the entire period that a dairy
animal is lactating. ‘‘Stage of life’’ was
reasoned to be more specific than ‘‘stage
of production.’’
(9) On October 24, 2008, AMS
published a proposed rule on access to
pasture for ruminant livestock (73 FR
63584). AMS published the final rule,
Access to Pasture (Livestock) on
February 17, 2010 (75 FR 7154). This
rule was based on several NOSB
recommendations regarding ruminant
livestock feed and living conditions.
This rule set a requirement that
ruminants obtain a minimum of 30
percent dry matter intake from grazing
during the grazing season (7 CFR
205.237(c)).
(10) Between 2009 and 2011, the
NOSB issued a series of
8 NOSB, 2002. Recommendation Access to
Outdoors for Poultry. Available at: https://
www.ams.usda.gov/rules-regulations/organic/nosb/
recommendations.
9 NOSB, 2005. Formal Recommendation by the
NOSB to NOP. NOSB recommendation for Rule
change—‘‘Stage of Production’’ to ‘‘Stage of Life.’’
Available at: https://www.ams.usda.gov/rulesregulations/organic/nosb/recommendations.
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recommendations on livestock welfare.
These were intended to incorporate
prior NOSB recommendations that AMS
had not addressed. The November 2009
recommendation suggested revisions
and additions to the livestock health
care practice standards and living
conditions standards.10 The NOSB
recommended banning or restricting
certain physical alterations and
requiring organic producers to keep
records on livestock that were lame and/
or sick and how they were treated. This
recommendation proposed to separate
mammalian living conditions from
avian living conditions sections of the
USDA organic regulations so that the
provisions could be more directly
tailored to various livestock species. In
the mammalian section, the NOSB
proposed mandatory group housing of
swine and a requirement for rooting
materials for swine. In the avian section,
the NOSB proposed a variety of
provisions, including maximum
ammonia levels, perch space
requirements and outdoor access
clarifications.
(11) In October 2010, the NOSB
passed a recommendation on the use of
drugs for pain relief.11 The NOSB
recommended changing the health care
practice standards to allow the
administration of drugs in the absence
of illness to prevent disease or alleviate
pain. The NOSB stated that such a
change would improve the welfare of
organic livestock.
(12) In December 2011, the NOSB
passed an additional livestock welfare
recommendation.12 The 2011
recommendation added definitions for
terms related to livestock production
and provisions for health care standard
and living conditions. The NOSB also
revised its prior recommendation on
physical alterations to provide a more
inclusive list of prohibited procedures.
In the mammalian living conditions
section, the NOSB recommended that
outdoor access for swine include a
minimum of 25 percent vegetative cover
at all times. For avian species, the NOSB
recommended specific indoor and
outdoor space requirements, e.g.,
stocking densities, among other
provisions for living conditions specific
to poultry. For layers, the NOSB
10 NOSB, 2009. Formal Recommendation by the
NOSB to the NOP, Animal Welfare. Available at:
https://www.ams.usda.gov/rules-regulations/
organic/nosb/recommendations.
11 NOSB, 2010. Formal Recommendation by the
NOSB to the NOP, Clarification of 205.238(c)(2).
Available at: https://www.ams.usda.gov/rulesregulations/organic/nosb/recommendations.
12 NOSB, 2011. Formal Recommendation by the
NOSB to the NOP, Animal Welfare and Stocking
Rates. Available at: https://www.ams.usda.gov/rulesregulations/organic/nosb/recommendations.
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recommended a minimum of 2.0 ft2 per
bird indoors and outdoors.
(13) In December 2011, the NOSB
passed a separate recommendation to
add standards for transportation of
livestock to slaughter facilities and the
slaughter process.13 The NOSB’s
recommendation for transport included
provisions for veal calves and the
trailers/trucks used to transport animals
to ensure continuous organic
management. The NOSB recommended
that slaughter facilities must meet
certain performance-based standards
assessed via observations of animal
handling and any slips, falls or
vocalizations before and during
slaughter.
C. AMS Policy, Regulatory History, and
Withdrawal of OLPP
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(1) AMS Policy Regarding Animal
Welfare
On October 29, 2002, AMS issued a
memorandum to clarify outdoor access
and temporary confinement
requirements for livestock under the
USDA organic regulations.14 The
memorandum stated that producers are
required to balance accommodations for
an animal’s health and natural behavior
with measures to ensure an animal’s
safety and well-being. The
memorandum further explained that the
USDA organic regulations do not
specify an outdoor space allowance or
stocking rate, nor do they require that
all animals in the herd or flock have
access to the outdoors at the same time.
This memorandum explained how
producers could provide evidence of
compliance to support temporary
confinement. This memorandum was
incorporated into the NOP Handbook
(as ‘‘PM 11–5’’) on January 31, 2011,
and is retained as current policy.
On February 17, 2010, AMS
published a final rule on Access to
Pasture (Livestock). The final rule was
in response to the 2005 NOSB
recommendation and extensive public
input requesting clear outdoor access
requirements for ruminant livestock.
The Access to Pasture Rule adopted new
provisions relating to organic livestock
production, addressing such matters as
animal feed; dry matter intake; access to
and management of pasture as an
organic crop; organic bedding; and use
13 NOSB,
2011. Formal Recommendation by the
NOSB to the NOP, Animal Handling and Transport
to Slaughter. Available at: https://
www.ams.usda.gov/rules-regulations/organic/nosb/
recommendations.
14 National Organic Program, 2002. Access to the
Outdoors for Livestock. Retained as Policy Memo
11–5. Available in the NOP Handbook: https://
www.ams.usda.gov/sites/default/files/media/
Program%20Handbk_TOC.pdf.
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and management of feeding yards,
feeding pads, and feedlots. The Access
to Pasture Rule also clarified that the
requirements for outdoor access and
species-appropriate access to shade,
shelter, exercise, fresh air, and direct
sunlight required by the NOP Rule must
be provided for all organic livestock,
including poultry, on a year-round
basis. The final rule established that
ruminant livestock obtain at least 30
percent dry matter intake from grazing
during the grazing season (7 CFR
205.237(c)). The rule provided clarity to
correct inconsistent application and
enforcement of the outdoor access
provisions for ruminant livestock. While
AMS was able to rely on stakeholder
feedback about consistent application of
regulations to inform this proposed rule,
AMS was unable to look at regulatory
impacts from the rule like production
levels because USDA’s Economic
Research Service stopped releasing that
data in 2011, and available data sources
would not be sufficient to estimate any
causality or impact.
In March 2010, the USDA Office of
the Inspector General (OIG) issued a
report concerning, in part, AMS
guidance on outdoor access for organic
livestock.15 The OIG found inconsistent
certification practices regarding outdoor
access for poultry. The OIG
recommended that AMS issue guidance
on outdoor access for livestock.
On October 13, 2010, AMS published
draft guidance, Outdoor Access for
Organic Poultry, for public comment.16
The draft guidance advised certifying
agents to use the 2002 and 2009 NOSB
recommendations as the basis for
certification decisions regarding outdoor
access for poultry.17 The draft guidance
informed certifying agents and
producers that maintaining poultry on
soil or outdoor runs would demonstrate
compliance with the outdoor access
requirement in 7 CFR 205.239.
Comments received by AMS on the draft
guidance are summarized below. Given
the comments and the request that
USDA address this issue through the
rulemaking process, AMS determined to
pursue rulemaking to clarify outdoor
access for poultry and did not finalize
the draft guidance.
AMS received 69 comments on the
draft guidance. Comments varied
15 USDA, Office of the Inspector General. March
2010. Audit Report 01601–03–Hy, Oversight of the
National Organic Program. Available at: https://
www.usda.gov/oig/rptsauditsams.htm.
16 On October 13, 2010, AMS also published a
Notice of Availability of Draft Guidance and
Request for Comments in the Federal Register (75
FR 62693).
17 The 2002 and 2009 NOSB recommendations
included daily outdoor access from an early age and
access to direct sunlight, open air and soil.
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widely. Some supported more specific
and stringent stocking densities and
soil-based outdoor access, citing animal
health and environmental benefits.
Other comments favored maintaining an
allowance for porches as acceptable
outdoor access, citing biosecurity and
animal health concerns.
Furthermore, commenters stated that
the draft guidance was unenforceable
and would not ensure year-round
outside access for poultry. These
commenters suggested a minimum
stocking rate of 1.75 square feet per bird
in henhouses that also provide access to
perches, with an additional 5 square feet
per bird available in vegetated outdoor
runs, which should be accessible to all
birds at the same time. Some comments
from poultry producers supported
outdoor access on pasture or other
vegetation and described health benefits
and protection of the environment that
a pasture or other vegetated outdoor
access area would afford. A number of
commenters, including organic poultry
producers, requested a change to the
draft guidance language to say that
poultry, when outdoors, should be
maintained on soil.
One trade association, some organic
egg producers, and consultants
described the use of production systems
that limit outdoor access via the use of
enclosed porches, so that poultry are not
in contact with soil or pasture. These
commenters described the benefits of
these systems: protection from
predation, pathogens that cause food
safety problems, exposure to parasites,
and contact with wild birds that could
carry diseases. The commenters asserted
that these systems are consistent with
the 2002 NOSB recommendation. They
noted that organic egg producers have
made substantial investments in
facilities with porches. Some also
expressed concerns that placing birds
on soil would affect their ability to
comply with the Food and Drug
Administration’s Salmonella prevention
food safety regulations (21 CFR part
118). Several producers expressed
concern with the 2009 NOSB
recommendation that pullets be given
outdoor access at 6 weeks of age,
because layers are not fully immunized
(including for protection against
Salmonella) until 16 weeks of age and
should not be exposed to uncontrolled
environments until that time.
(2) Regulatory History of the OLPP Rule
A proposed rule that incorporated
NOSB recommendations was then
published in April 2016. The proposed
rule included provisions related to
health care practices, such as physical
alteration procedures, euthanasia, and
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treatment of sick animals. It also
addressed living conditions for
mammalian and avian livestock,
including minimum indoor and outdoor
space requirements for avian livestock.
Finally, the rule addressed requirements
for transport and for slaughter practices.
It received 6,675 written comments
during the 90-day comment period.
There were nearly 1,500 individual
comments on the proposed rule,
excluding form letters and signatures on
petitions (numbering in the tens of
thousands). Comments were received
from producers, producer associations,
handlers, certifying agents, consumers
and consumer groups, animal welfare
organizations, veterinarians, state
government agencies, foreign
government agencies, and trade
associations or organizations. Comments
provided insight on the public’s
questions about regulatory authority,
import impact, trade agreements, and
educational avenues. Additionally,
comments about the clarity of the rule
generally found it beneficial for the
industry and its impact on the label but
acknowledged some challenges with
universal standards.
AMS made a number of changes to
this proposed rule based on comments
in order to mitigate impacts and
improve the clarity of the requirements.
AMS published the Organic Livestock
and Poultry Practices final rule (OLPP
Rule) on January 19, 2017 (82 FR 7042).
Prior to the OLPP Rule becoming
effective, USDA decided to delay that
date to allow the new Administration to
review the Rule.
(3) Withdrawal of OLPP Final Rule
After delaying the effective date of the
final rule,18 AMS proposed
withdrawing the OLPP rule because of
its emergent view that the agency lacked
the legal authority for the rulemaking,
substantive errors in the economic
analysis for the rule, and a lack of
market failure (82 FR 59988, December
18, 2017). On March 13, 2018, AMS
published a final rule (Withdraw Rule)
withdrawing the OLPP Rule for those
reasons (83 FR 10775). After discovering
additional errors in the economic
analysis for the OLPP Rule and the
Withdraw Rule, AMS published the
Organic Livestock and Poultry Practice
Economic Analysis Report on April 23,
2020, to describe all the errors and
sought comment on the Report (85 FR
22664). After considering the comments,
AMS published the Final Decision on
Organic Livestock and Poultry Practices
18 See 82 FR 9967 (February 9, 2017); 82 FR 21677
(May 19, 2017); and 82 FR 52643 (November 14,
2017).
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Rule and Summary of Comments on the
Economic Analysis Report on
September 17, 2020 (85 FR 57937). In
the Final Decision, AMS concluded that
‘‘[t]o the extent the Withdrawal Rule
formed an assessment of the likely costs
and benefits of the OLPP Rule based on
that flawed analysis, AMS hereby
modifies that assessment and concludes
simply that the Final RIA does not
support promulgation of the OLPP Rule
in light of its significant flaws.’’ AMS
further concluded that ‘‘[i]mplementing
the OLPP Rule based on such a flawed
economic analysis is not in the public
interest[]’’ and decided not to take any
further regulatory action with respect to
the OLPP Rule (85 FR 57944).
In June 2021, Secretary Vilsack
announced that USDA would
‘‘reconsider the prior Administration’s
interpretation that [OFPA] does not
authorize USDA to regulate the
practices that were the subject of the
[OLPP Rule].’’ He further directed NOP
‘‘to begin a rulemaking to address this
statutory interpretation and to include a
proposal to disallow the use of porches
as outdoor space in organic production
over time and on other topics that were
the subject of the OLPP final rule.’’
(a) Economic Analysis
In the Economic Analysis Report,
AMS described the three errors that had
been identified in the economic analysis
of the Withdraw Rule: (1) the incorrect
application of the discounting formula;
(2) the use of an incorrect willingness to
pay value for eggs produced under the
new open access requirements; and (3)
the incorrect application of a
depreciation treatment to the benefit
calculations. The Report explained that
although the economic analysis of the
Withdraw Rule correctly identified
these errors and properly addressed the
first two errors (incorrect discounting
methodology and willingness-to-pay
values), it had not fully removed the
incorrect depreciation treatment from
the cost and benefit calculations, which
erroneously reduced the calculation of
both costs and benefits.
The Report went on to identify and
discuss four categories of additional
errors in the economic analysis of the
OLPP Rule that were previously
undetected and therefore inadvertently
carried forward to the economic
analysis of the Withdraw Rule. These
were: (1) inconsistent or incorrect
documentation of key calculation
variables; (2) an error in the volume
specification affecting benefits
calculations in two of three scenarios
considered; (3) the incorrect use of
production values in the benefits
calculations that do not account for
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projected increased mortality loss; and
(4) aspects of the cost calculations that
resulted in certain costs being ignored,
underreported, or inconsistently
applied. In addition, the Report
described certain minor errors that did
not have a material impact on the cost
and benefit calculations (85 FR 57938).
In this proposed rule, AMS worked to
ensure that the RIA for the proposed
rule addressed these concerns. Some of
the mathematical or descriptive
concerns were addressed with rewriting
the proposed rule. AMS specifically
addressed issues with discounting and
depreciation in the analysis and fixed
various errors found by the report.
Additionally, AMS adjusted the
willingness to pay for outdoor access in
eggs to the more precise measure
suggested by the economic analysis
report. While AMS maintains the use of
enterprise budgets in the original rule to
model costs, we updated costs to the
extent possible based on data
availability and believe these models are
appropriate, as they provide the most
detailed estimates for the organic
industry and USDA ERS has shown that
both feed and land costs have remained
approximately steady since their
development.19 20
(b) Market Failure
The Withdraw Rule said that the
OLPP Rule failed to meet the
requirements of Executive Order 12866,
that the agency ‘‘propose or adopt a
regulation only upon a reasoned
determination that the benefits of the
intended regulation justify its costs’’
and that there was no clear market
failure for the need for the rule as
referenced in Executive Order 13563.
Although it is not necessary for
rulemaking, AMS is reconsidering this
rationale in the Withdraw Rule.
In reviewing the available
information, AMS does believe a market
failure exists in the organic label.
Specifically, consumers have varying
understanding of the degree to which
the organic label requires indoor/
outdoor space, health, and welfare
provisions for animals used in organic
production. Specifically, space and
outdoor access are required in 7 CFR
205.239(a)(1), but this requirement has
been interpreted by producers and
certifying agents in different ways,
allowing producers to provide indoor
space and outdoor access through
19 USDA ERS. Farmland Value. https://
www.ers.usda.gov/topics/farm-economy/land-useland-value-tenure/farmland-value/.
20 USDA NASS. Paid Indexes by Farm Origin and
Month, Feed and Livestock & Poultry. https://
www.nass.usda.gov/Charts_and_Maps/
Agricultural_Prices/prod3.php.
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several different metrics and methods.
While different practices are not
inherently a market failure—and in
many markets a sign of healthy market
innovation—in a marketing label,
varying practices can create inefficient
outcomes if they allow for producers to
benefit from information failures.
Consumers are increasingly interested
in the treatment of animals raised for
food, as evidenced by the proliferation
of animal welfare certification labeling
claims. These animal welfare
certification programs have varying
requirements, even within individual
programs, creating a range of standards
in the marketplace.21 For example, these
programs may include standards for
pastured, cage-free and free-range
production. High participation rates
among organic livestock and poultry
producers in these third-party animal
welfare certification programs indicates
that the organic label does not provide
the level of information consumers need
to assess whether a specific brand meets
their expectations for animal welfare
practices. Consumers who purchase
these doubly certified products would
likely not be satisfied with private
animal welfare certification alone
because organic certification addresses
other unique attributes they seek, e.g.,
animals receive only organic feed.
While the proliferation of ecolabels may
not dilute the value of the organic label,
literature shows consumer confusion
may be associated with ecolabel
proliferation.22
The various production practices used
to meet requirements like outdoor
access have allowed producers that use
lower-cost and less-stringent practices
to benefit from the same organic
labeling and premium as producers than
use more costly or robust practices.
Through public comment and literature
reviews outlined in the RIA, AMS has
observed that consumers need to
expend additional effort and seek out
additional label information if they wish
to purchase animal products with
outdoor access to soil and flora. AMS
seeks comment on this analysis that
market failure exists.
21 The Humane Farm Animal Care program has
compiled a table comparing the requirements of
selected third-party animal welfare certification
programs for laying hens. This includes stocking
density and outdoor standards. The comparison
table is available at: https://certifiedhumane.org/
how-we-work/fact-sheet/.
22 Magali A. Delmas, Olivier Gergaud, Sustainable
practices and product quality: Is there value in ecolabel certification? The case of wine, Ecological
Economics, Volume 183, 2021, https://doi.org/
10.1016/j.ecolecon.2021.106953.
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(c) Statutory Authority
In 2018, AMS withdrew the OLPP
Rule, in part, based on its view that the
OFPA did not provide authority for the
OLPP Rule. AMS stated that the
statutory authority for the OLPP Rule
was insufficient because the ‘‘reference
in 7 U.S.C. 6509(d)(2) to additional
regulatory standards ‘for the care’ of
organically produced livestock does not
encompass stand-alone concerns about
animal welfare, but rather is limited to
practices that are similar to those
specified by Congress in the statute’’—
e.g., restrictions on the use of
antibiotics, synthetic internal
parasiticides, administration of
medication, and certain feed substances
and practices—‘‘and necessary to meet
congressional objectives outlined in’’
section 6501. Id. at 10,776. AMS further
stated that ‘‘standards promulgated
pursuant to section 6509(d)(2) and
section 6509(g) must be relevant to
ensuring that livestock is ‘organically
produced.’ ’’ Id. USDA reasoned that
dictionary definitions of the word
‘‘organic’’ generally relate to the use of
‘‘artificial chemicals in the growing of
plan[t]s and animals for food and other
products,’’ and that ‘‘[t]he surrounding
provisions in section 6509 demonstrate
that Congress had a similar
understanding of the term ‘organic.’ ’’ Id.
Based on this analysis, AMS concluded
that ‘‘the authority granted in section
6509(d)(2) and section 6509(g) for the
Secretary to issue additional [livestock
care] regulations fairly extends only to
those [regulations] that . . . relate to the
ingestion or administration of nonorganic substances, thus tracking the
purposes of the OFPA[.]’’ Id. at 10776–
77. AMS determined that ‘‘stand-alone
concerns about animal welfare’’ did not
meet this standard. Id. at 10,776. In so
concluding, USDA explained that it
would not ‘‘regulate outside the
boundaries of legislative text,’’ id. at
10,776, such that even if the OFPA were
‘‘silent or ambiguous with respect to the
authority issue,’’ it believed that its
interpretation was a ‘‘permissible’’ one.
Id. at 10,777; see also id. at 10,778
(referring to agency’s ‘‘interpretation of
the scope of its statutory authority’’ as
‘‘permissible’’).
This aspect of the Withdraw Rule was
in tension with the USDA’s view of its
authority in issuing the OLPP Rule, as
well as the regulatory authority USDA
has traditionally exercised in this area.
With this rulemaking action, AMS is
reconsidering the determination in the
Withdraw Rule. Based on the analysis
below, the agency is proposing to adopt
the position that OFPA does provide the
requisite authority for regulations
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48569
regarding livestock and poultry health
care practices and living conditions,
including regulations regarding animal
welfare.
OFPA at 7 U.S.C. 6509 addresses
practices and materials that may be used
in organic livestock production.
Subsection (c) of that provision, entitled
‘‘Practices,’’ requires producers to use
organic feed, prohibits certain types of
feed, such as plastic pellets and manure
refeeding, and prohibits the use of
growth promoters and hormones.
Subsection (d), entitled ‘‘Health care,’’
restricts the use of subtherapeutic doses
of antibiotics, the routine use of
synthetic internal parasiticides, and the
administration of medication absent
illness. Id. § 6509(d)(1). In addition,
subsection (d)(2) requires the NOSB to
‘‘recommend to the Secretary standards
in addition to those [specified in
subsection (d)(1)] for the care of
livestock to ensure that such livestock is
organically produced.’’ 7 U.S.C.
6509(d)(2).
While 7 U.S.C. 6509 addresses
specific animal production practices for
the organic program, OFPA does not
prohibit the Secretary from adopting
additional requirements about practices
used in raising organic livestock. For
example, much of Section 6509 dictates
what organic producers ‘‘shall not’’ do
and contains prohibitions of specific
livestock production practices while not
limiting the Secretary’s authority to
promulgate regulations about how
organic livestock shall be ‘‘raised.’’ See,
e.g., 7 U.S.C. 6509(a) (‘‘Any livestock
that is to be slaughtered and sold or
labeled as organically produced shall be
raised in accordance with this
chapter.’’). Indeed, Section 6509(d)(2)
recognizes that the NOSB will
recommend standards ‘‘in addition’’ to
the practices specified in subsection (d)
‘‘for the care of livestock.’’
In addition to the specific authority
regarding livestock in section 6509,
Congress also provided the Secretary
with broad rulemaking authority to
‘‘require such other terms and
conditions’’ for the organic program that
he may deem necessary. 7 U.S.C.
6506(a)(11). This section, along with
section 6509(g)’s charge to the Secretary
to ‘‘develop detailed regulations . . . to
guide the implementation of the
standards for livestock products
provided under this section,’’ would
provide ample authority for the detailed
requirements in this proposed rule.
In any event, even if the statutory text
were ambiguous, USDA’s interpretation
is reasonable because the proposed rule
would be consistent with the purposes
of the OFPA. Commenters noted in the
OLPP Rule that it would be reasonable
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for AMS to adopt regulations that
address animal welfare as part of
OFPA’s overall design.23 Consistent
with this design, AMS has promulgated
regulations addressing livestock
production and living conditions that
affect the health and welfare of
livestock, including measures to avoid
disease and illness; provisions about
feed; principles governing housing,
pasture conditions, and sanitations
practices; and requirements for access to
the outdoors and an the natural
environment.
Over the years since OFPA was
enacted, animal welfare has become an
integral part of organic production as
evidenced by the hundreds of thousands
of public comments that USDA has
received on this topic over the years as
well as an emerging body of research on
the motivations that drive consumers to
buy organic livestock products. Several
studies point to animal welfare concerns
as significant or even primary drivers
for organic consumers,24 and likewise
that non-organic consumers perceive
organic livestock to be raised according
to higher animal welfare standards than
non-organic livestock.25 Literature also
suggest state sponsored ecolabels
provide the highest levels of consumer
confidence.26
Notably, many in the contemporary
organic industry do not view animal
welfare as distinct from the concerns
expressly reflected in the statutory text
of OFPA. For example, by promoting
animal natural behaviors and practices
that maximize the health and welfare of
organic livestock, producers reduce the
need for antibiotics and other
medications that section 6509(d)
expressly limits.27 The Senate report
that accompanied the OFPA legislation
set the expectation for greater specificity
23 Comments for all OLPP rulemaking can be
found at https://www.regulations.gov/docket/AMSNOP-15-0012/document.
24 Alonso, Marta E.; Gonza
´ lez-Montan˜a, Jose´ R.;
and Lomillos, Juan M. (2020) ‘‘Consumers’
Concerns and Perceptions of Farm Animal
Welfare,’’ Animals, Vol. 10, pp. 385–397.
McEachern, M.G.; Willock, J. (2004) ‘‘Producers and
consumers of organic meat: A focus on attitudes
and motivations.’’ British Food Journal, Vol. 106,
pp.534–552.
25 Harper, Gemma C; Makatouni, Aikaterini
(2002) ‘‘Consumer perception of organic food
production and farm animal welfare.’’ British Food
Journal; Vol. 104, Iss. 3–5, pp. 287–299.
˜ nderskov, and Carsten
26 Kim Mannemar SA
Daugbjerg. ‘‘The State and Consumer Confidence In
Eco-labeling: Organic Labeling In Denmark,
Sweden, The United Kingdom and The United
States.’’ Agriculture and human values, v. 28, .4 pp.
507–517. doi: 10.1007/s10460–010–9295–5
27 Wemette, M., Safi, A. G., Wolverton, A. K.,
Beauvais, W., Shapiro, M., Moroni, P., . . . &
Ivanek, R. (2021). Public perceptions of antibiotic
use on dairy farms in the United States. Journal of
Dairy Science, 104(3), 2807–2821 https://
pubmed.ncbi.nlm.nih.gov/33455793/
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in the future for organic livestock
standards as the industry matured:
‘‘More detailed standards are
enumerated for crop production than for
livestock production. This reflects the
extent of knowledge and consensus on
appropriate organic crop production
methods and materials. With additional
research and as more producers enter
into organic livestock production, the
Committee expects that USDA, with the
assistance of the National Organic
Standards Board will elaborate on
livestock criteria.’’ 28
In addition, a growing body of
research is showing that livestock and
poultry with access to pasture and the
outdoors forage and engage in natural
behaviors, which may be positively
associated with their improved health
and well-being, be better for the
environment, and result in healthier
livestock and poultry 29 products for
human consumption.30 AMS believes
that promoting animal welfare through
the practices addressed in the OLPS
Rule, and particularly with respect to
outdoor access, would contribute to
cycling of resources and ecological
balance values reflected in the
regulation.
Additionally, as the USDA Office of
the Inspector General noted, certifiers
have been inconsistent in their
application of livestock access to
outdoor space, a requirement stemming
from the 2010 Access to Pasture Rule.
This proposed rule would address the
inconsistent application of the
requirement by specifying a minimum
size for outdoor access areas, clarifying
circumstances when animals do not
require outdoor access, and specifying
records that operations must keep to
disclose their activities, including
records of temporary confinement from
the outdoors.
In sum, USDA believes that, as a
policy matter, regulation is warranted.
USDA is also proposing to determine,
for the reasons identified above, that it
may exercise this authority under the
OFPA. USDA is requesting comment on
the identified disagreement over
28 Senate Committee on Agriculture, Forestry and
Nutrition, Report of the Committee on Agriculture,
Forestry and Nutrition to Accompany S. 2830
Together with Additional and Minority Views, 101st
Congress, S. REP. NO. 101–357, at 289 (1990).
29 Is Grassfed Meat and Dairy Better for Human
and Environmental Health? Frederick D. Provenza,
Scott L. Kronberg, and Pablo Gregorini, Front Nutr.
2019; 6: 26. https://www.ncbi.nlm.nih.gov/pmc/
articles/PMC6434678/
30 Palupi, Eny; Jayanegara, Anuraga; Ploegera,
Angelika and Kahla, Johannes (2012) ‘‘Comparison
of nutritional quality between conventional and
organic dairy products: a meta-analysis,’’ Journal of
the Science of Food and Agriculture, Vol. 92, pp.
2774–2781. https://pubmed.ncbi.nlm.nih.gov/
22430502/
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whether OFPA authorizes regulations
on animal welfare and livestock
production practices that are part of this
proposed rule.
D. Related Issues
If finalized, this rule would supersede
the appeal decision described below
and impose the requirements set out in
a final rule with respect to avian living
conditions.
On July 15, 2002, an operation
applied for organic certification of its
egg laying operation with a USDAaccredited certifying agent. As part of
the application, the operation’s Organic
System Plan (OSP) stated that outdoor
access would be provided through
covered and screened ‘‘porches.’’
Porches are elevated areas (with solid or
slatted floors) that have access to/from
the poultry house and do not typically
provide any means for birds to descend
to ground level. The certifying agent
denied certification for failure to
provide hens with access to the
outdoors. The certifying agent stated
that a porch did not provide outdoor
access as required by the USDA organic
regulations. The operation appealed the
Denial of Certification to the AMS
Administrator on October 22, 2002. The
Administrator sustained the appeal on
October 25, 2002, and directed the
certifying agent to grant organic
certification to the operation
retroactively to October 21, 2002.
The certifying agent objected to the
Administrator’s decision and appealed
to the USDA Office of the
Administrative Law Judge (ALJ). On
November 4, 2003, the USDA ALJ
dismissed the appeal. On December 11,
2003, the certifying agent appealed to
the USDA Judicial Officer. On April 21,
2004, the USDA Judicial Officer
dismissed the appeal. On September 27,
2005, the certifying agent filed an
appeal with the U.S. District Court,
District of Massachusetts. On March 30,
2007, the U.S. District Court granted
USDA’s motion to dismiss the case
(Massachusetts Independent
Certification, Inc. v. Johanns, 486
F.Supp.2d 105).
As a result of these adjudications, use
of porches to meet the requirement in
the USDA organic regulations for
outdoor access expanded, and certain
producers have settled on production
practices that rely on porches, leading to
inconsistencies with producers that
offer animals access to outdoor spaces
with soil, vegetation, direct sunlight,
and considerable space per animal.
III. Overview of Proposed Amendments
Below AMS provides a summary and
discussion of all proposed changes in
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the proposed rule. The proposed
regulatory text, in its entirety, can be
found at the end of this document. The
proposed changes in this rule are
similar to requirements included in the
OLPP Rule, except AMS removed a
provision related to natural light in
poultry houses that required an
inspector to be able to read and write
with lights turned off on a sunny day
(see additional discussion below in the
section on avian living conditions at
§ 205.241), as well as made edits for
clarity. Below we summarize areas of
the proposed rule.
A. Definitions (§ 205.2)
This proposed rule would add
seventeen new terms to 7 CFR 205.2:
beak trimming, caponization, cattle
wattling, de-beaking, de-snooding,
dubbing, indoors or indoor space,
mulesing, non-ambulatory, outdoors or
outdoor space, perch, pullet, ritual
slaughter, soil, stocking density, toe
clipping, and vegetation. The proposed
definitions are discussed below.
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1. Eight New Terms To Define
Prohibited Physical Alterations
Current organic regulations permit
‘‘physical alterations’’ of animals ‘‘as
needed to promote the animal’s welfare
and in a manner that minimizes pain
and stress’’ (7 CFR 205.238(a)). The
proposed rule would elaborate on this
requirement and prohibit some specific
types of physical alterations. These
physical alterations would be defined in
the regulations to support common
understanding of the meaning of the
terms, as some terms could otherwise be
interpreted in various ways (e.g.,
‘‘caponization’’ may be referred to as
‘‘castrating’’ in some regions). These
alterations are not understood to
promote animal welfare or may be
overly painful or stressful without a
corresponding benefit to animal welfare.
The prohibition of specific physical
alterations was recommended by the
NOSB in 2009.
The following terms are defined in
this proposed rule: ‘‘beak trimming,’’
‘‘caponization,’’ ‘‘cattle wattling,’’ ‘‘debeaking,’’ ‘‘de-snooding,’’ ‘‘dubbing,’’
‘‘mulesing,’’ and ‘‘toe clipping.’’
2. Indoors or Indoor Space
The proposed rule would define
‘‘indoors or indoor space’’ as the space
inside of an enclosed building or
housing structure that is available to
livestock. The proposed definition
includes four examples of structures
that are commonly used in poultry
production. These indoor housing types
would be defined, in part, because the
proposed space requirements are based
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on the housing type. AMS also includes
an indoor space requirement at
§ 205.241(b)(8)(v) for housing that does
not fit within one of the specific types
defined in § 205.2. While all organic
livestock would need to be provided
with species-appropriate shelter,
structures providing indoor space
would not be required. For example,
beef cattle raised on pasture or range in
mild climates may not be provided with
indoor space.
The proposal relies on the term
‘‘enclosed’’ to establish if a space should
be considered indoors or outdoors.
Under the proposed definition, the
space within the building or structure
that can be enclosed would be
considered the indoor space. The
proposed rule defines ‘‘outdoors or
outdoor space’’ separately (see
discussion below). AMS welcomes
public comment on whether the
proposed definitions clearly and
adequately distinguish the two types of
spaces.
Specifically, AMS seeks comments on
whether the proposed definitions
sufficiently address spaces that may be
enclosed by fences and/or overhead
netting. The definition of ‘‘indoors or
indoor space’’ is not intended, as
proposed, to include fenced areas
outside of a building or structure or to
include fenced outdoor areas that may
also have overhead netting. AMS
recognizes that, in most cases, animals
are also ‘‘enclosed’’ within outdoor
spaces by fencing and/or overhead
netting, and AMS seeks comments on
whether the proposed definitions would
allow for consistent implementation of
the indoor and outdoor space
requirements.
One of the key considerations for
distinguishing indoor space from
outdoor space would be how the
livestock are managed in that space,
which may determine whether the space
could be defined as indoors, outdoors,
or neither indoors nor outdoors. As an
example, a screened-in and roofed
porch to which the (enclosed) birds
always have access, including during
temporary confinement events, would
be considered indoor space. That same
porch would be considered neither
indoors nor outdoors if the birds do not
have continuous access to the space
during temporary confinement events. If
the screens were removed from that
porch so that the birds could freely
access other outdoor space, then the
porch would be considered outdoor
space (see ‘‘Outdoors or outdoor space
‘‘in section III.A.3). These distinctions
would provide flexibility for producers
to work with their certifying agents
when developing their organic system
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plans (OSPs), yet still aligns with the
position that enclosed porches are not
considered to be outdoor space.
The proposed rule would also define
the term ‘‘perch’’ as a rod- or branchtype structure above the floor of the
house that accommodates roosting,
allowing birds to utilize vertical space
in the house.
3. Outdoors or Outdoor Space
The proposed rule would define
‘‘outdoors or outdoor space’’ to clarify
the meaning of outdoor areas for
mammalian and avian species.
‘‘Outdoors or outdoor space’’ would be
defined as any area outside of an
enclosed building or enclosed housing
structure, but including roofed areas
that are not enclosed. For example, a
screened poultry ‘‘porch,’’ enclosed by
wire on the sides, would not be
considered outdoors. In this definition,
‘‘outdoors or outdoor space’’ would
include all of the non-enclosed space
encompassing soil-based areas such as
pastures, pens, or sacrifice lots;
hardened surface areas such as feedlots,
walkways, or loafing sheds; and areas
providing outdoor shelter such as
windbreaks and shade structures. For
avian species, the proposed definition
includes pasture pens, which are
floorless pens that are moved regularly
and provide direct access to soil and
vegetation. These pens (also referred to
as ‘‘chicken tractors’’) may consist of
solid roofing over all or part of the pen
to provide shelter for the birds.
The outdoor space would have
species-specific requirements. For
example, this proposed rule sets the
requirement that 50 percent of the
outdoor space for avian species must be
soil-based and that the soil be
maximally covered with vegetation
appropriate to the specific local
conditions. Depending on the outdoor
space and local conditions, a producer
could rotate poultry around outdoor
areas to allow vegetation to recover, or
a producer might need to periodically
reseed an outdoor area. Vegetative cover
would need to be maintained in a
manner that would not provide
harborage for rodents and other pests.
For additional description of the
proposed requirements, see section
below ‘‘Avian Living Conditions.’’
The proposed rule would define
‘‘soil’’ as the outermost layer of the earth
comprised of minerals, water, air,
organic matter, fungi, and bacteria in
which plants may grow roots. Soil
would be defined to distinguish these
areas from impervious areas such as
concrete or pavement. Soil may consist
of bare ground but is generally covered
with vegetation. As described in the
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mammalian and avian living condition
sections, maximum vegetative cover
should be maintained on the soil as
appropriate for the species, season,
geography, and climate. Designated
sacrifice areas or dry lots would be
permitted. Outdoor areas would need to
be maintained in a manner that
maintains or improves natural
resources, including soil and water
quality (7 CFR 205.200). Temporary
confinement may be provided to protect
soil and water quality.
To assist with the mitigation of
biosecurity and predation risks, fencing,
netting, or other materials would be
permitted over all or part of the outdoor
areas to prevent predators and other
wild birds from entering the outdoor
area. Many producers also use portable
or permanent shade structures
throughout their pastures. Structures for
shade would also be permitted in the
outdoor space. For example, the area
within a stand-alone, roofed shade
structure could be included as outdoor
space area. Areas under the eaves or the
awning of a building, with a roof
attached to the outer wall of the indoor
space structure, can also be considered
outdoors. While these areas may have
solid roofs overhead, they can offer the
same quality of outdoor space as
uncovered outdoor areas, including
natural ventilation/open air, direct
sunlight, soil, vegetation, and open
access to uncovered areas beyond.
4. Non-ambulatory
6. Stocking Density
The proposed rule would define
‘‘stocking density’’ as the weight of
animals on a given area or unit of land.
This term is used to describe the indoor
and outdoor space requirements for
organic livestock. For example, the
proposed rule would establish
maximum stocking densities for avian
species, and the producer would need to
ensure that the area provided is large
enough to not exceed the established
maximum stocking density when all
birds in the flock are on the given area
(i.e., indoors) or unit of land.
7. Ritual Slaughter
The proposed rule would add the
term ‘‘ritual slaughter’’ and references
the definition in the Humane Methods
of Slaughter Act (7 U.S.C. 1902(b)). This
Act defines ritual slaughter as
‘‘slaughtering in accordance with the
ritual requirements of any religious faith
that prescribes a method of slaughter
whereby the animal suffers loss of
consciousness by anemia of the brain
caused by the simultaneous and
instantaneous severance of the carotid
arteries with a sharp instrument and
handling in connection with such
slaughtering.’’
Organic livestock and handling
operations may use ritual slaughter to
convert their livestock to meat or
poultry without loss of organic status.
5. Pullets
8. Vegetation
The proposed rule would add the
term ‘‘vegetation’’ and defines it as
living plant matter that is anchored in
the soil by roots and provides ground
cover. This term applies to the
requirement for vegetation in outdoor
areas, which is central to protecting soil
and water quality as well as providing
for livestock to exhibit their natural
behaviors. The roots of vegetation
provide stability and structure to soil.
Vegetation helps water soak into the soil
rather than running off, which can cause
erosion. Livestock also have natural
behaviors of grazing, rooting, nesting,
etc., which require vegetation.
AMS modified the definition of
pullets, which is used by the AMS
Livestock, Poultry, and Seed Program, to
include species other than chickens.
This proposed rule would define
‘‘pullets’’ as female chickens or other
avian species being raised for egg
production that have not yet started to
lay eggs. Once avian females begin
laying eggs, AMS refers to them as
layers. The term ‘‘pullets’’ would not
B. Livestock Care and Production
Practices Standard (§ 205.238)
AMS proposes to amend current
provisions and add new provisions to
the organic livestock care and
production practice standards. The
proposed amendment to § 205.238(a)(2)
specifies that the sufficiency of the feed
ration be demonstrated by appropriate
body condition of the livestock.
Livestock producers would be required
The proposed rule would add the
term ‘‘non-ambulatory’’ and references
the definition in 9 CFR 309.2(b). FSIS
defines non-ambulatory as ‘‘livestock
that cannot rise from a recumbent
position or that cannot walk, including,
but not limited to, those with broken
appendages, severed tendons or
ligaments, nerve paralysis, fractured
vertebral column, or metabolic
conditions.’’ Any non-ambulatory
livestock on organic farms would need
to be medically treated, even if the
treatment causes the livestock to lose
organic status or be humanely
euthanized.
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to monitor their animals to ensure body
condition is being maintained. In
addition, certifying agents would need
to verify the nutritional adequacy of the
animals’ diet by assessing the body
condition of organic livestock during
inspection. Suitable body condition
varies between species, between breeds,
and between production types. For
example, a suitable condition for dairy
cattle may be considered too thin in beef
cattle.
AMS proposes to revise
§ 205.238(a)(5) to clarify the conditions
under which physical alterations may
be performed on livestock. Physical
alterations may only be performed for
an animal’s welfare, identification, or
safety. Alterations must be done at a
reasonably young age with minimal
pain or stress to the animal and may
only be performed by an individual who
can competently perform the procedure.
Competency in performing physical
alterations may be demonstrated by
appropriate training or experience of the
individual.
A 2009 NOSB recommendation
allowed teeth clipping and tail docking
in piglets, but this revision was
retracted in the 2011 NOSB
recommendation.31 This proposed rule
would add § 205.238(a)(5)(i), which
would restrict needle teeth clipping and
tail docking in pigs. These two types of
physical alterations may not be
performed on a routine basis but may be
performed as needed to improve
livestock welfare, as listed below.
Needle teeth clipping and tail docking
in pigs may only be performed in
response to documented animal welfare
reasons after alternative steps to prevent
harm fail. Teeth clipping, if performed,
is limited to the top third of each needle
tooth. For example, an organic swine
producer who clipped needle teeth or
performed tail docking would need to
document excessive needle teeth
scarring on the underline of a sow or
piglets, or document tail biting on
piglets in the litter. Swine producers
would also need to document that
alternative methods to prevent scarring
had failed. Such alternative methods
may include, but are not limited to,
cross-fostering prior to teat fidelity
across litters to minimize weight
variation, providing sufficient
enrichment materials, and providing
vegetation for rooting.
AMS proposes to add a new
§ 205.238(a)(5)(ii) to list the physical
alterations that would be prohibited in
an organic operation. Based on the 2011
NOSB recommendations, the following
31 Available at https://www.ams.usda.gov/rulesregulations/organic/nosb/recommendations.
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physical alterations to avian species
would be prohibited: de-beaking, desnooding, caponization, dubbing, toe
clipping of chickens, toe clipping of
turkeys unless with infra-red at
hatchery, and beak clipping after 10
days of age. In addition, the following
physical alterations to mammalian
species would be prohibited: tail
docking of cattle, wattling of cattle, face
branding of cattle, tail docking of sheep
shorter than the distal end of the caudal
fold, and mulesing of sheep.
AMS proposes to add new
requirements at § 205.238(a)(7) to
specify that surgical procedures on
livestock to treat an illness must be
done in a manner that minimizes pain,
stress, and suffering. The NOSB
recommended that all surgical
procedures for livestock be done with
the use of anesthetics, analgesics, and
sedatives. USDA organic regulations
require that all surgical procedures for
treatment of disease be undertaken in a
manner that employs best management
practices in order to minimize pain,
stress, and suffering, and only with the
use of anesthetics, analgesics, and
sedatives as listed in § 205.603(a) and
(b).
AMS is proposing a new
§ 205.238(a)(8) that would require
organic producers to actively monitor
and document lameness within the herd
or flock. Lameness can be an issue in
various livestock species, including
broilers, sheep, and dairy cattle. This
proposed requirement for producers to
create a plan for monitoring and
recording instances of lameness in the
organic system plan would enable
organic livestock producers to identify
and address potential problems among
animals before they become widespread.
In addition, documentation of lameness
would provide an auditable trail for
certifying agents to verify that livestock
producers are monitoring these
potential causes of animal suffering.
AMS proposes to add § 205.238(b) to
state that synthetic medications allowed
under § 205.603 may be administered to
alleviate pain or suffering. In addition,
synthetic medications allowed under
§ 205.603 may be administered when
preventive practices and veterinary
biologics are inadequate to prevent
sickness.
AMS proposes to amend
§ 205.238(c)(1) to clarify that milk from
an animal treated with an allowed
substance in § 205.603, which has a
withholding time, may not be sold,
labeled, or represented as organic
during that withholding time. However,
organic animals or breeder stock may
continue to provide milk for organic
calves on the same operation during the
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withholding time. This is consistent
with the 2010 NOSB recommendation
that a calf nursing a cow treated
topically with lidocaine or other
approved synthetic with a withdrawal
time would not lose organic status. For
example, if an organic beef cow was
nursing her organic calf and the cow
became injured, her calf could continue
to nurse the cow even during the sevenday withholding period if lidocaine was
used to minimize pain and stress during
her treatment. In this scenario, the calf
would not lose organic status.
AMS proposes to revise
§ 205.238(c)(2) to clarify that other
veterinary biologics, in addition to
vaccines, would be exempt from the
prohibition on administering animal
drugs in the absence of illness. This
change would be consistent with the
definition for biologics in § 205.2 and
supports § 205.238(a)(6), which
identifies the use of vaccines and other
veterinary biologics as a required
practice to improve animal health.
AMS proposes to revise
§ 205.238(c)(3) to clarify that organic
livestock producers would be prohibited
from administering synthetic or nonsynthetic hormones to promote growth,
or for production or reproductive
purposes. Hormones listed in § 205.603
could be used as medical treatments
(e.g., oxytocin). Stakeholders have noted
that the USDA organic regulations fail to
address use of hormones to stimulate
production or for reproductive
purposes. AMS is not aware of any
hormones used by organic producers for
these purposes (and none are included
on the National List for these uses). The
proposed changes would maintain the
status quo; however, the proposed
changes affirm and support the current
prohibition on hormones in organic
production. This addition would clarify
that all hormones—unless used as
medical treatments—are prohibited in
organic production.
AMS proposes to add a new
§ 205.238(c)(8) that would prohibit
organic livestock producers from
withholding treatment designed to
minimize pain and suffering for injured,
diseased, or sick animals. Injured,
diseased, or sick animals may be treated
with any allowed natural substance or
synthetic medication that appears on
the National List. However, if no
appropriate medication is allowed for
organic production, organic livestock
producers would be required to
administer treatment even if the animals
subsequently lose their organic status.
Furthermore, as recommended by the
American Veterinary Medical
Association, some forms of euthanasia
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may be an acceptable practice for
minimizing pain and suffering.
AMS proposes to add a new
§ 205.238(c)(9) that would require
livestock producers to identify and
record treatment of sick and injured
animals in animal health records. Early
identification can lead to more effective
prevention or treatment, which would
enhance the overall health of the
livestock on that operation.
AMS proposes to add a new
§ 205.238(c)(10) that would prohibit the
practice of forced molting in poultry.
Section 205.238(a)(2) of this proposed
rule requires a nutritionally sufficient
feed ration for livestock. Forced
molting, a practice in which feed is
severely restricted for a period of time
in order to rejuvenate egg production,
runs counter to this proposed addition.
The proposed new § 205.238(c)(10)
would be consistent with the fall 2009
NOSB recommendation.32
AMS proposes to add a new
§ 205.238(d) that would require organic
livestock operations to have a plan to
minimize internal parasite problems in
livestock. The plan to minimize internal
parasites must include preventive
measures such as pasture management,
fecal monitoring, and emergency
measures in the event of a parasite
outbreak. Livestock producers would
also be required to work with their
certifying agents to approve a parasite
control plan.
In certain cases, livestock may suffer
from an illness or injury where recovery
is unlikely. AMS proposes to add a new
§ 205.238(e) to address euthanasia based
on the 2011 NOSB recommendations.
Proposed § 205.238(e)(1) would require
livestock producers to maintain written
plans for euthanizing sick or injured
livestock. Proposed § 205.238(e)(2)
would prohibit the following methods
of euthanasia: suffocation, manual
blows to the head by blunt instrument
or manual blunt force trauma, and use
of equipment that crushes the neck (e.g.,
killing pliers or Burdizzo clamps). In the
event of an emergency situation where
a local, State, or Federal government
agency requires the use of a non-organic
method of euthanasia, organic livestock
operations would not lose organic
certification or face other penalties for
the use of non-organic methods of
euthanasia. The NOSB recommended
listing the allowable methods of
euthanasia, however, given that new
humane euthanasia methods may
emerge, AMS does not intend to
discourage producers from using these
techniques. AMS proposes to direct
32 Available at https://www.ams.usda.gov/rulesregulations/organic/nosb/recommendations.
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organic livestock producers to use
methods of euthanasia consistent with
the most recent editions of the
American Veterinary Medical
Association (AVMA) Guidelines for the
Euthanasia of Animals.33 The list of
specifically prohibited methods could
be amended to include other
techniques, if needed, through future
rulemaking. AMS also proposes to add
a new § 205.238(e)(3), which would
require organic producers to examine
livestock to ensure they are dead
following a euthanasia procedure.
C. Mammalian Livestock Living
Conditions (§ 205.239)
AMS is proposing to separate the
mammalian living conditions section
from avian living conditions section due
to the different physiology and
husbandry practices for birds and
mammals. As a result, AMS proposes
revising the title of § 205.239 from
‘‘Livestock Living Conditions’’ to
‘‘Mammalian Livestock Living
Conditions.’’ By creating clear living
condition requirements for mammalian
livestock and avian livestock, organic
operations and certifying agents are
better equipped to implement the USDA
organic regulations in a consistent
manner. Information regarding avian
living conditions is addressed in new
§ 205.241.
AMS proposes to revise
§ 205.239(a)(1) to remove the
requirement that all ruminant livestock
must be able to feed simultaneously.
One method of feeding livestock,
including ruminants, is the use of a selffeeder or a creep-feeder. With creepfeeding and self-feeding, feed is
accessible to all livestock at all times
though they may not feed at the exact
same time. Allowing self-feeding and
creep-feeding systems would provide
organic ruminant producers with more
flexibility and options to manage their
farm and livestock in farm-specific
methods.
AMS proposes to maintain the current
§ 205.239(a)(3), which requires the use
of appropriate, clean, dry bedding. If
roughages are used as bedding, they
must be organically produced and
handled by certified operations, with
the exception of transitioning dairy
producers that may provide crops and
forage from land included in the organic
system plan of the dairy farm that is in
the third year of organic management
during the 12-month period
immediately prior to the sale of organic
milk and milk products (7 CFR
205.236(a)(2)(i)).
33 https://www.avma.org/resources-tools/avmapolicies/avma-guidelines-euthanasia-animals.
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AMS proposes to revise
§ 205.239(a)(4)(i) to specify that shelter
must be designed to accommodate
natural behaviors over every 24-hour
period. Shelter must have sufficient
space for the animals to lie down, stand
up, and fully stretch their limbs and
allow livestock to express their normal
patterns of behavior over a 24-hour
period. AMS recognizes that there are
times when animals will be constrained
for livestock handling or management
purposes. An animal may be limited in
its freedom of movement during parts of
the day for a variety of reasons,
including milking, feeding, or other
handling purposes. Livestock may be
constrained for limited amounts of time
to ensure hygiene and wellbeing of the
animals. Stalls for organic dairy cattle
are often designed to limit the animals
from turning to the sides. This stall
design directs manure and urine into a
collection system to prevent mastitis
and maintain low somatic cell counts in
the milk. Mammalian livestock may be
housed for part of the day in stalls as
described in the organic system plan as
long as they have complete freedom of
movement during significant parts of
the day for grazing, loafing, and
exhibiting natural social behavior. This
allowance does not permit the use of
gestation crates or other confinement
systems in which swine would be
housed individually in stalls for months
at a time. However, if livestock are
temporarily confined indoors as
permitted in § 205.239(b), livestock
must be able to move around, turn
around, and stretch their limbs indoors
for part of the day. Operations would
need to fully describe the use of any
stalls, methods used in stall
management, and how livestock are able
to express their normal patterns of
behavior.
AMS proposes to add
§ 205.239(a)(4)(iv) to set requirements
for an indoor space for bedding and
resting that is sufficiently large and
comfortable to keep livestock clean, dry,
and free of lesions, with the exception
of animals raised on pasture or range.
AMS recognizes that while livestock do
need to be provided with shelter
(defined in § 205.2), livestock on pasture
or range may not have access to
traditional barns or bedded areas and
therefore may not be provided with
indoor space. These types of operations
may use windbreaks or other methods to
provide shelter for the livestock.
Additionally, not all manufactured
shelters are designed to hold bedding;
for example, a shelter designed to
provide shade may be portable and thus
incompatible with holding bedding.
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Operations need to describe in their
OSP how they will provide shelter to
their livestock in a manner suitable for
the species, stage of production, and
environment.
AMS proposes to add new
requirements in § 205.239(a)(7)
concerning the individual housing of
dairy young stock. Section 205.239(a)(7)
would allow for the individual housing
of animals until the weaning process is
complete but no longer than six months,
as long as the animals have sufficient
room to turn around, lie down, stretch
out while lying down, get up, rest, and
groom themselves. In addition, the
individual housing of young stock
would need to be designed so that
animals can see, smell, and hear other
animals.
AMS proposes to add three new
provisions in § 205.239(a)(8) to require
the group housing of swine, with three
listed exceptions: (1) § 205.239(a)(8)(i)
would allow for sows to be individually
housed at farrowing and during the
suckling period; (2) § 205.239(a)(8)(ii)
would allow for boars to be individually
housed to reduce the likelihood of fights
and injuries; and (3) § 205.239(a)(8)(iii)
would allow for swine to be
individually housed after multiple
documented instances of aggression or
to allow an individual pig to recover
from a documented illness.
AMS proposes to add two new
provisions in § 205.239(a)(9) and (10)
concerning swine housing. Section
205.239(a)(9) would prohibit the use of
flat decks or piglet cages. This provision
would prohibit the stacking of piglets in
flat decks in multiple layers. AMS is not
aware of any organic producers
currently using these methods for
organic production. AMS is proposing
specific language to prohibit the
practices and affirm that these systems
do not and cannot meet the living
conditions requirements of the organic
regulations. In addition, § 205.239(a)(10)
would require both indoor and outdoor
areas for swine to include space for the
livestock to root. Rooting is a natural
behavior that must be accommodated by
organic swine producers and could be
done in soil, deep packed straw, or
other materials. Organic swine
producers would also be required to
update their OSP to address how swine
will be allowed to root during
temporary confinement periods.
AMS proposes to add a new provision
in § 205.239(a)(11) to further clarify the
use of barns or other structures with
stalls. If indoor shelter is provided by a
structure with stalls, this structure must
have a sufficient number of stalls to
allow for the natural behaviors of the
animals. A cage would not be
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considered a stall. AMS is aware that
some operations use systems that
robotically feed animals that take turns
entering an individual feeding stall.
AMS does not intend to prohibit such
systems since they could enhance the
wellbeing of organic livestock.
Therefore, the proposed § 205.239(a)(11)
would provide an exception for this
type of system: more animals than
feeding stalls may be allowed for grouphoused swine as long as all animals are
fed routinely every day. AMS also
proposes to add specific allowances for
a variety of cattle barns, including tie
stall barns, stanchion barns, and free
stall barns. However, while these barns
can all be suitable for organic
certification systems, the specific
procedures used by producers with
these barns may be incompatible with
organic production. For example, it
would not be permitted for a producer
to leave an animal tied up for 24 hours
per day in a tie stall barn.
AMS proposes to add a new
requirement for outdoor access in
§ 205.239(a)(12). Organic livestock
would be required to have
unencumbered access to the outdoors
year-round, unless temporary
confinement is justified under a specific
reason described in the USDA organic
regulations (e.g., nighttime confinement
for protection from predators). When the
outdoor space includes soil, then
maximal vegetative cover must be
maintained as appropriate for the
season, climate, geography, species of
livestock, and stage of production.
Ruminants must have access to graze
during the growing season. Swine are
not required to have access to the soil
or vegetation; however, if a swine
producer chooses to allow swine to have
access to the soil as a rooting material,
then the producer must maintain as
much vegetative cover as possible given
the natural behavior of swine to root,
the season, and local environmental
conditions.
AMS proposes to revise
§ 205.239(b)(7) to clarify the exemption
for temporary confinement for the
purpose of breeding livestock. Livestock
may only be confined for the time
required for natural or artificial
breeding. A group of livestock may be
confined before the procedures and
while the various individuals are bred;
afterward, the group shall be returned to
living spaces that allow outdoor access.
This provision would prohibit livestock
from being confined indoors to observe
estrus, or until they are determined to
be pregnant. Proposed § 205.239(c)(1)
further describes the time when
ruminants may be denied access to
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pasture, but not access to the outdoors,
before and after a breeding attempt.
AMS proposes to revise
§ 205.239(b)(8) to clarify the temporary
confinement exception for youth
livestock projects. Because many youth
livestock projects include the sale of
market animals, organic animals that
were under continuous organic
management may be sold as organic
animals at youth fairs, even if the sales
facility is not certified organic. Thus,
the proposed revision includes an
exemption to the proposed
§ 205.239(b)(6) requirement that a
livestock sales facility be certified as an
organic operation. As an example, if a
youth exhibition and sale is held at a
livestock sales facility that is not
certified organic, the livestock may be
temporarily confined indoors during the
event. In this case, the youth could still
sell the organic animal as an organic
animal, provided all other requirements
for the organic management of livestock
are met. Otherwise, non-certified sales
facilities, such as auction barns or
fairgrounds, may not sell or represent
livestock as organic. AMS proposes to
include this exception to encourage the
next generation of organic farmers.
AMS proposes to revise § 205.239(d)
to reflect the similar proposed changes
in § 205.239(a)(1). Use of self-feeding
and creep-feeding would be allowed to
provide ruminants with access to feed
continuously over a 24-hour period.
D. Avian Living Conditions (§ 205.241)
AMS is proposing to add a new
section to the organic regulations,
§ 205.241, entitled ‘‘Avian living
conditions,’’ which includes
requirements for all organic avian
(‘‘bird’’ or ‘‘poultry’’) species, including
but not limited to, chickens, turkeys,
geese, quail, pheasant, and any other
species that are raised for organic eggs,
organic meat, or other organic
agricultural products.
Section 205.241(a) proposes to
establish general requirements for
organic poultry production. These
general principles are further clarified
in § 205.241(b), (c), and (d). Section
205.241(a) would require organic
poultry operations to establish and
maintain living conditions that
accommodate the wellbeing and natural
behaviors of the birds. These living
conditions include: year-round access to
the outdoors, soil, shade, shelter,
exercise areas, fresh air, direct sunlight,
clean water for drinking, materials for
dust bathing, and adequate space to
escape aggressive behaviors. The living
conditions provided should be
appropriate to the species, its stage of
life, the climate, and the environment.
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These proposed requirements are based
upon a 2009 NOSB recommendation 34
and are largely identical to previously
established livestock requirements at
§ 205.239(a)(1), although AMS proposes
to add additional requirements,
including materials for dust bathing and
adequate outdoor space to escape
aggressive behaviors. These additional
requirements are necessary to provide
for the basic needs of poultry.
Section 205.241(b) proposes to specify
the indoor space requirements for avian
species. This proposed provision would
require operations to provide shelter to
birds, and if an operation provides
indoor space to birds, this space would
need to meet the proposed indoor space
requirements. Proposed § 205.241(b)(1)
would require that indoor space be
sufficiently spacious to allow all birds
to move freely, stretch their wings,
stand normally, and engage in natural
behaviors. Cages or environments that
limit free movement within the indoor
space would be prohibited. In addition,
the indoor space must allow birds to
engage in natural behaviors such as dust
bathing, scratching, and perching. These
proposed requirements are adopted
from a 2009 NOSB recommendation and
modify previously established
requirements for organic livestock at
§ 205.239(a)(4)(i) that required, ‘‘shelter
designed to allow for. . .natural
maintenance, comfort behaviors, and
opportunity to exercise.’’
AMS proposes to add a new
§ 205.241(b)(2) to require producers to
monitor ammonia levels at least
monthly and implement practices to
maintain ammonia levels below 10
ppm. Should ammonia levels exceed 10
ppm, producers would be required to
implement additional practices and
additional monitoring to reduce
ammonia levels below 10 ppm.
Ammonia levels above 25 ppm would
not comply with the requirements.
Ammonia is a natural breakdown
product of manure from livestock and is
harmful to birds when inhaled,
especially at concentrations above 25
ppm.35 Inhalation of high levels of
ammonia has a negative impact on
welfare in poultry, causing irritation
and inflammation, as well as
contributing to negative production
outcomes like reduced growth. In most
34 2009 NOSB Sunset Recommendation: https://
www.ams.usda.gov/sites/default/files/media/
NOP%20Final%20Sunset%20
Rec%20Animal%20Welfare.pdf.
35 ‘‘Ammonia production in the poultry houses
and its harmful effects’’ IU Sheikh, SS Nissa,
Bushra Zaffer, KH Bulbul, AH Akand, HA Ahmed,
Dilruba Hasin, Isfaqul Hussain and SA Hussain,
International Journal of Veterinary Sciences and
Animal Husbandry, 3(4): 30–33, 2018.
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cases, high levels of ammonia indicate
that litter is damp, or litter management
practices require modification.
Proposed § 205.241(b)(3) would
clarify the lighting requirements for
organic layers and fully feathered birds.
Organic producers could use artificial
light for up to 16 hours per day (24-hour
period). The 16-hour period would need
to be calculated as a single continuous
time period. Artificial light would need
to be lowered gradually to encourage
hens to move to perches or otherwise
settle for the night. AMS is not
including a requirement from the 2017
OLPP final rule (subsequently
withdrawn in 2018) that required,
‘‘Natural light must be sufficient indoors
on sunny days so that an inspector can
read and write when all lights are
turned off.’’ AMS determined that it
would not be feasible for inspectors to
verify a producer’s compliance with this
requirement, so the requirement was
removed from this proposed rule.
Proposed § 205.241(b)(4) would
require exit areas, or doors, on shelters
to be designed in such a way that the
birds could easily access both indoor
and outdoor areas. Access and
utilization of outdoor areas is a core
principle of organic production systems.
Organic avian systems must be designed
so birds have ready access to outdoor
areas and so birds are able to return
indoors to roost in the evening.
Producers must provide exit doors and
door sizes to enable all birds to access
outdoor and indoor areas. Door size and
appropriate placement must provide
meaningful outdoor access to the birds.
This section also notes that shell egg
producers may be subject to FDA
requirements in 21 CFR part 118
intended to prevent Salmonella
Enteritidis (SE). Specifically, these FDA
regulations require producers to
maintain biosecurity measures that
prevent stray poultry, wild birds, cats,
and other animals from entering poultry
houses. AMS invites comments on how
organic producers provide exit doors for
meaningful outdoor access while
simultaneously preventing animals (that
could introduce or transfer SE) from
entering poultry houses.
Proposed § 205.241(b)(5) would
require perches for chicken layers at a
rate of six inches per bird for all
housing, with the exception of aviary
housing. Perch space could include the
alighting rail in front of nest boxes.
Perches would not be required for
broilers, meat birds, or layers of nonGallus gallus species. Aviary housing
would need to provide 6 inches of perch
space for only 55 percent of the flock
(i.e., 3.3 inches of perch for each bird in
flock) because birds in aviary housing
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are also able to escape aggressive
behavior by moving between tiers in the
house. These proposed requirements are
adopted from 2009 and 2011 NOSB
recommendations.
Proposed § 205.241(b)(6) would
specify indoor requirements to allow for
certain natural behaviors. Indoor space
would be required to include areas that
allow for scratching and dust bathing.
Litter (i.e., bedding), such as wood
shavings or straw, must also be
provided indoors. Manure excreted by
birds in a poultry house alone, without
additional litter, would not be sufficient
to meet this requirement. The proposed
provisions would also require that litter
be maintained in a dry manner, since
wet litter can lead to a variety of
problems for birds, including excess
ammonia, lameness, and pest
problems.36 High moisture content in
poultry litter can cause negative health
and welfare outcomes, including foot
pad dermatitis 37 and increased
populations of house fly leading to
disease in the birds.38 Wet litter also
promotes bacterial growth, which can
further lead to disease and negative
health outcomes in birds.39 Litter may
be topped off when needed to maintain
sufficient dryness. The proposed
requirements described in
§ 205.241(b)(6) are adopted from 2009
and 2011 NOSB recommendations.
Proposed § 205.241(b)(7) would add
specific flooring requirements for indoor
avian housing with slatted/mesh floors.
These houses must provide at least 30
percent solid flooring to allow birds
indoors to engage in natural behaviors,
including scratching and dust bathing,
without crowding. This proposed
requirement is adopted from a 2009
NOSB recommendation.
Sections 205.241(b)(8), 205.241(b)(9),
and 205.241(b)(10) propose minimum
indoor space requirements for different
types of housing. These are minimum
standards, and organic producers may
choose to provide more indoor space
than required. The indoor space
36 ‘‘Broiler Litter: Odor and Moisture Concerns’’,
Tom Tabler, Yi Liang, Jonathan Moon, and Jessica
Wells. Mississippi State University Extension,
Publication: P3515, 2020.
37 ‘‘Wet litter not only induces footpad dermatitis
but also reduces overall welfare, technical
performance, and carcass yield in broiler chickens’’,
Ingrid C. de Jong, H.Gunnink and J.van Harn,
Journal of Applied Poultry Research, 23(1): 51–58,
2014.
38 ‘‘Pests in Poultry, Poultry Product-Borne
Infection and Future Precautions’’, Hongshun Yang,
Shuvra K. Dey, Robert Buchanan, and Debabrata,
Biswas Practical Food Safety: Contemporary Issues
and Future Directions, 1, 2014.
39 ‘‘Broiler Litter: Odor and Moisture Concerns’’,
Tom Tabler, Yi Liang, Jonathan Moon, and Jessica
Wells, Mississippi State University Extension,
Publication: P352020.
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requirements would apply to chickens
(Gallus gallus), with layer requirements
at § 205.241(b)(8), pullet requirements at
§ 205.241(b)(9), and broiler
requirements at § 205.241(b)(10). The
proposed indoor space requirements for
layers vary by the type of housing
provided. The types of housing are
further defined in § 205.2 and include:
mobile housing, aviary housing, slatted/
mesh floor housing, and floor litter
housing. For housing that does not fit
into any of these defined types, the
proposed indoor space requirement is
no more than 2.25 pounds of hen per
square foot. Pasture pens that are moved
regularly and provide direct access to
soil and vegetation would not be
considered indoors (see definition of
‘‘outdoors’’ in § 205.2). These proposed
requirements are adapted from 2009 and
2011 NOSB recommendations, and
made in consideration of third-party
animal welfare standards.
AMS proposes to establish indoor
space requirements for common types of
poultry housing. Less indoor space will
be required per bird in houses that
provide more access to vertical space in
the house, as birds have more room to
move around (e.g., aviary and slatted/
mesh floor housing). Housing where
birds have more limited access to
vertical space (e.g., floor litter housing)
must provide more indoor space per
bird. AMS proposes to allow higher
stocking densities in mobile housing, as
birds managed in these systems spend
more time outdoors, and mobile housing
must be relatively small and light, as it
is moved frequently.
AMS is using the unit of measurement
as ‘‘pounds per square foot’’ to establish
space requirements. In other words, the
minimum space that must be provided
depends on the average weight of birds
at that time. All weight references
proposed in § 205.241(b) and (c) refer to
the weight of live birds and not the
weight of processed birds, for example.
By stating the requirement in pounds
per square foot, the application of the
space requirement is more consistent
between breeds, where the average
weight per bird can vary significantly.
This unit of measurement (pounds per
square foot) was recommended by the
NOSB in 2011 for pullets and broilers,
and AMS proposes to extend this same
unit of measurement to layers. This use
of measurement allows birds to receive
similar spacing densities physically no
matter the breed’s size. Under this
proposed rule, larger breeds (i.e.,
heavier on a per-bird basis) must be
provided with more indoor space than
smaller birds, on a per bird basis. For
example, Rhode Island Red birds are
heavier than White Leghorns or ISA
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Browns, and thus cannot be stocked as
densely, in terms of number of birds per
unit area.
An example of how space
requirements can be calculated is as
follows: a layer in a floor litter housing
system that is 32 weeks of age and
weighs 4.3 pounds must be provided
with 1.43 square feet per bird
(equivalent to 3.0 pounds of bird for
each one square foot); however, at 80
weeks of age and a weight of 4.5
pounds, each bird must be provided
with 1.5 square feet per bird (3.0 pounds
of bird for each one square foot). In
other words, for each 10,000 square feet,
a producer could stock 6,993 birds at 32
weeks of age (bird weight of 4.3 pounds)
but only 6,667 birds at 80 weeks of age
(bird weight of 4.5 pounds). Although
older and heavier birds require more
space, natural mortalities over time may
result in compliance with the space
requirements over a production cycle.
To calculate the weight of birds, an
average weight may be established for
the flock by taking weights of a
representative sample of the flock. The
requirement is not specific to each
individual bird in a flock. AMS
understands that many producers
already monitor and track bird weight
closely during the production cycle to
monitor bird development and health
and calculate feed requirements.
However, if weight is not monitored by
a producer, the producer will need to
establish the weight of birds based on
objective criteria to determine the space
required indoors and outdoors.
Certifiers may also weigh birds at
inspections to verify compliance with
the requirements.
Proposed § 205.241(b)(11) specifies
how the area of the indoor space is
calculated. Indoor space must be
calculated to ensure that birds are
provided with adequate indoor space to
meet the proposed space requirements
at § 205.241(b)(8) through (10). The total
size of the indoor space is calculated by
including all flat areas in a house,
excluding nest boxes. Elevated round
perches, for example, are not flat areas
and could not be included as indoor
space. Nest boxes are excluded from the
calculation, as they are distinct from
useable floor areas of the house where
birds can move around freely. This
aligns with the 2009 and 2011 NOSB
recommendations.
Proposed § 205.241(b)(12) clarifies
that indoor space may include enclosed
porches and lean-to type structures (e.g.,
screened in, roofed) provided that the
birds always have access to the space,
including during temporary
confinement events. The same porch
must not be counted as indoor space if
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the birds do not have continued access
to the space during temporary
confinement events. This would ensure
that enclosed porches that are not fully
accessible to birds are not counted in
indoor space calculations.
Proposed § 205.241(c) establishes the
requirements for outdoor areas for
organic avian species, including the
amount of outdoor space that must be
provided to organic avian species. The
requirements of proposed § 205.241(c)
are adapted from previously established
requirements at § 205.239, 2009 and
2011 NOSB recommendations, and
third-party animal welfare organization
standards. Proposed § 205.241(c)(1)
requires that the outdoor space be
designed to promote and encourage
outdoor access for all birds. Producers
are required to provide access to the
outdoors at an early age. This section
requires door spacing to be designed to
promote and encourage outdoor access
and requires outdoor access to be
provided on a daily basis (further
described at proposed § 205.241(b)(4)).
Outdoor access may only be temporarily
restricted in accordance with proposed
§ 205.241(d).
Proposed § 205.241(c)(2) would
require outdoor areas for poultry to have
a minimum of 50 percent soil and that
the soil portion of the outdoor area
include maximal vegetative cover.
Vegetative cover must be maintained in
a manner that does not provide
harborage for rodents and other pests.
For example, a producer may mow
vegetation to ensure that tall vegetation
does not provide harborage for pests. A
maximum of 50 percent of the outdoor
area may be gravel, concrete, or surfaces
other than soil or soil with vegetative
cover. Maximal vegetation would be
required, as vegetation protects soil and
water quality and allows birds to engage
in natural behaviors, including foraging,
pecking, and scratching. The amount of
vegetation present would depend on the
season, climate, geography, species, and
the stage of production.
Proposed § 205.241(c)(3) clarifies how
producers may provide shade to meet
the general requirements of proposed
§ 205.241(a). Shade may be provided in
outdoor areas by trees, shade structures,
or other appropriate objects. This
section is specific to shade in outdoor
areas; it would not permit structures
that do not meet the definition of
‘‘outdoors’’ (§ 205.2) to be included in
calculations of outdoor space.
This proposed rule would require
organic layer producers to provide at
least one square foot of outdoor space
for every 2.25 pounds of bird in the
flock. For example, if birds average 4.5
pounds, a producer must provide 2.0
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square feet of outdoor space for each
bird in the flock. Organic pullet
producers must provide at least one
square foot of outdoor space for every
3.0 pounds of bird in the flock. Organic
broiler producers must provide at least
one square foot of outdoor space for
every 5.0 pounds of bird in the flock.
The total outdoor space that must be
provided per flock is to be calculated by
multiplying the total number of birds in
the flock by the space required per bird
(i.e., not by multiplying the number of
birds actually in the outdoor area at a
given moment by the space requirement
per bird). All weight references in
proposed § 205.241(b) and (c) refer to
the weight of live birds and not the
weight of processed birds.
Proposed § 205.241(c)(7) would
clarify that porches and lean-to type
structures that are not enclosed (e.g.,
with a roof, but with screens removed)
and allow birds to freely access other
outdoor areas can be counted as outdoor
space. This would ensure that enclosed
porches are not counted as outdoor
space, while providing flexibility for
producers to use modified porches as
outdoor space when they are open to
larger outdoor areas that the birds can
access.
Proposed § 205.241(d) describes the
conditions under which organic avian
livestock producers may temporarily
confine birds indoors (‘‘temporary’’ and
‘‘temporarily’’ further defined at
§ 205.2). Producers must record
confinement, and should do so in a
manner that will demonstrate
compliance with the USDA organic
regulations (also see § 205.103). Records
could include the reason for the
confinement, the duration of the
confinement, and the flocks that were
confined. Records should be sufficient
for a certifier to determine if birds were
confined in compliance with this
section. The requirements of proposed
§ 205.241(d) are adapted from
previously established requirements for
organic livestock at § 205.239(b), 2009
and 2011 NOSB recommendations, and
third-party animal welfare organization
standards.
Proposed § 205.241(d)(1) would
provide an allowance for temporary
confinement in response to inclement
weather, which is defined at § 205.2. In
addition, this provision would allow
birds to be confined indoors when the
temperature does not exceed 40° F. It
would also allow birds to be denied
outdoor access or be brought inside
when the daytime temperature exceeds
90° F. In this case, producers have to
provide outdoor access during parts of
the day when temperatures are between
40–90ßF, unless other forms of
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inclement weather occur. Weather may
still qualify as inclement weather
(§ 205.2) within the 40–90° F
temperature range. For example,
excessive precipitation and very violent
weather can occur when temperatures
are within 40° F and 90° F. Likewise,
weather may meet the definition of
inclement weather within the range of
40° F and 90° F if the relative humidity
is very high and the air temperature is
nearing 90° F, or under extremely windy
conditions. As inclement weather is
defined, in part, as weather that can
cause physical harm to a species, a
producer would still be in compliance
with proposed § 205.241(d)(1) if birds
were confined at temperatures that did
not exceed 90° F, if the weather could
cause physical harm.
Proposed § 205.241(d)(2) would
provide an allowance for temporary
confinement indoors due to a bird’s
stage of life. In this section, AMS
proposes specific requirements for
confining chicken broilers and chicken
pullets due to their stage of life (‘‘stage
of life’’ previously defined at § 205.2).
Additionally, the section includes a
general provision for confining other
avian species until fully feathered.
Chicken broilers may be confined
through 4 weeks of age and chicken
pullets may be temporarily confined
indoors through 16 weeks of age. The
NOSB recommended 16 weeks of age as
the age after which outdoor access is
required to provide adequate time for
pullets to complete their vaccination
program before exposure to pathogens
outdoors. Any confinement beyond the
time when birds are fully feathered
would be in accordance with proposed
§ 205.241(d).
Proposed § 205.241(d)(3) would
provide an allowance for temporary
indoor confinement under conditions in
which the health, safety, or well-being
of the birds could be jeopardized.
Temporary confinement would be
required to be recorded, and to confine
birds under this proposed provision, a
producer must have sufficient
justification to demonstrate that an
animal’s health, safety, or well-being
could be jeopardized by access to the
outdoors. Certifying agents would verify
compliance with this requirement.
Producers and certifying agents should
consult with animal health officials, as
appropriate, to determine when
confinement of birds is warranted to
protect the health, safety, or well-being
of the birds. Animal health officials are
also encouraged to reach out to
certifying agents and to AMS to discuss
specific health concerns. AMS would
continue to engage animal health
officials, including State Departments of
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Agriculture and State Veterinarians,
about risks to bird health and provide
appropriate guidance to certifying
agents or producers, as necessary.
Proposed § 205.241(d)(4) would
provide an allowance for indoor
confinement to prevent risk to soil or
water quality. This provision would
allow for confinement of birds when the
outdoor area is being managed to
reestablish vegetation. As outdoor areas
must be maximally vegetated, producers
may need to occasionally confine birds
to meet the vegetation requirement at
§ 205.241(c)(2).
Proposed § 205.241(d)(5) would
provide an allowance for indoor
confinement for preventive health care
procedures and for the treatment of
illness or injury. Neither life stages nor
egg laying are considered an illness for
confinement purposes. For example,
this provision would allow producers to
briefly confine a flock to administer a
vaccine or confine an individual animal
that requires medical treatment.
Proposed § 205.241(d)(6) would
provide an allowance for indoor
confinement for sorting, shipping, and
poultry sales. Birds would be required
to be managed organically during the
entire time of confinement. For
example, any feed provided during
confinement must be organic.
Confinement must be no longer than
necessary to sort the birds or to catch
the birds, place them in shipping
containers, and conduct the sale.
Proposed § 205.241(d)(7) would
provide an allowance for indoor
confinement to train pullets to lay eggs
in nest boxes, with a maximum period
of five weeks allowed for confinement
(over the life of the bird). The training
period would be required to not be any
longer than required to establish the
proper behavior. As soon as the
behavior is established, birds must be
provided with access to the outdoors,
except when confined in accordance
with other provisions under proposed
§ 205.241(d).
Proposed § 205.241(d)(8) would
provide an allowance for indoor
confinement for youth exhibitions, such
as with 4–H or the National FFA
Organization. This provision would also
include an exemption to the
requirement that a livestock sales
facility be certified as an organic
operation. As an example, if a youth
exhibition and sale is held at a livestock
sales facility that is not certified organic,
a youth may sell birds there as organic,
provided all other requirements for
organic management are met. During the
youth event, the livestock may be
temporarily confined indoors.
Otherwise, non-certified sales facilities,
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such as auction barns, may not sell or
represent livestock as organic. AMS is
adding these provisions at proposed
§ 205.241(d)(8) to encourage the next
generation of organic producers.
Proposed § 205.241(e) would require
organic poultry producers to manage
manure in a manner that does not
contribute to contamination of crops,
soil, or water quality by plant nutrients,
heavy metals, or pathogenic organisms.
Organic poultry producers would be
required to manage the outdoor space in
a manner that does not put soil or water
quality at risk. In addition, organic
poultry producers would be required to
comply with all other governmental
agency requirements for environmental
quality. The proposed requirements of
this section are adapted from previously
established requirements for organic
livestock at § 205.239(e).
E. Transport and Slaughter
AMS is proposing to add a new
section to the organic regulations at
§ 205.242 titled ‘‘Transport and
Slaughter,’’ to address the care of
organic animals during transport and up
to the time of slaughter. Proposed
§ 205.242 is divided into three
subsections on transportation,
mammalian slaughter, and avian
slaughter.
The proposed changes are made in
response to a December 2011 NOSB
recommendation 40 and under AMS’s
authority to promulgate standards ‘‘for
the care of livestock’’ (7 U.S.C.
6509(d)(2)). AMS understands that ‘‘care
of livestock’’ is relevant up to the time
of slaughter and that some practices
during transport and/or slaughter
should affect an animal’s organic
certification. Once killed, existing
organic regulations for handling
operations become relevant for the
processing, packaging, and sale of
organic animal products. The proposed
requirements would apply to the care of
live animals.
The December 2011 NOSB
recommendation noted that additional
regulations for the transport and
slaughter of organic animals were
appropriate to assure consumers that
animal products sold as organic are
produced with a high level of animal
welfare and, ‘‘to avoid animal
mistreatment on the farm, during
transport to, or at the slaughter plant.’’
The NOSB noted that their
recommended regulatory language
reflect third-party animal welfare
40 https://www.ams.usda.gov/sites/default/files/
media/NOP%20Livestock%20Final%20
Rec%20Animal%20Handling%20and%20
Transport%20to%20Slaughter.pdf
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certification standards and common
practices within the industry. The
NOSB also specifically recommended
that AMS adopt the ‘‘necessary’’
requirements from the recommendation
to avoid increasing paperwork burden
or certification costs, and to avoid
discouraging small slaughter plants
from seeking or maintaining organic
certification. AMS agrees that additional
requirements are appropriate to cover
the time period(s) during which organic
livestock are transported and
slaughtered. As noted above, products
sold as organic must be managed and
processed in accordance with detailed
organic regulations. AMS believes that it
is appropriate to clarify the
requirements for transport and slaughter
in the organic regulations. This proposal
seeks to minimize paperwork burden
and increases in certification costs,
when possible, by referring to existing
regulations and laws that apply to
transport and slaughter. Specific
requirements are also included, as
recommended by the NOSB.
Proposed § 205.242(a)(1) would
require that animals are clearly
identified during transport. AMS’s
approach requires that livestock are
clearly identified but provides
flexibility on how the identity is
maintained during transport. Proposed
§ 205.242(a)(2) would set minimum
fitness requirements for livestock to be
transported. Proposed § 205.242(a)(2)(i)
would require that calves have a dry
navel cord and the ability to stand and
walk without assistance if they are to be
transported. This provision would apply
to transport to buyers, auction facilities,
or slaughter facilities. Beef cattle and
dairy cattle producers may transport
calves on the farm before the navel is
dried and the calves can walk. Proposed
§ 205.242(a)(2)(ii) would prohibit
transport of non-ambulatory animals to
buyers, auction facilities, or slaughter
facilities. These animals may either be
given medical treatments and cared for
until their health conditions improve, so
that they are able to walk, or they may
be euthanized.
Proposed § 205.242(a)(3) and (4)
would set minimum standards for the
trailer, truck, or shipping container used
for transporting organic livestock. The
mode of transportation would be
required to provide seasonally
appropriate ventilation to protect
livestock against cold or heat stress.
This provision would require that air
flow be adjusted depending on the
season and temperature. In addition,
bedding would be required to be
provided on trailer floors as needed to
keep livestock clean, dry, and
comfortable. If roughage is used as
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bedding, the bedding would need to be
organically produced and handled.
Bedding would not be required for
poultry crates.
Proposed § 205.242(a)(5) would
require that all livestock be provided
with organic feed and clean water if
transport time exceeds 12 hours. The
12-hour time period includes all times
during which the livestock are on the
trailer, truck, or shipping container,
even if these modes of transportation are
not moving. In cases such as poultry
slaughter in which requirements do not
allow feed 24 hours before slaughter,
producers and slaughter facilities would
need to ensure that transport time does
not exceed 12 hours. After 12 hours of
transport, the birds would need to be
fed, which may prolong the time to
slaughter. The certified operation would
need to present records—which verify
that transport times meet the 12-hour
requirement—to the certifying agent
during inspections or upon request.
Proposed § 205.242(a)(6) would
require that operations that transport
livestock to sales or slaughter have
emergency plans in place that
adequately address problems reasonably
possible during transport. Such
emergency plans could include how to
provide feed and water if transport time
exceeds 12 hours, what to do if livestock
escape during transport, or how to
euthanize an animal injured during
transport. Shipping and/or receiving
operations would also be required to
include these plans in their OSPs.
F. Slaughter Requirements (§ 205.242(b)
and (c))
1. Slaughter and the Handling of
Livestock in Connection With Slaughter
The requirements regarding slaughter
and the handling of livestock in
connection with slaughter are governed
by separate authority applicable to both
certified organic and non-organic
livestock products. The proposed rule
reiterates that compliance with these
regulations, as determined by FSIS, is
required for certified organic livestock
operations. The proposed requirements
defers, in large part, to existing
regulations and law while also aiming to
ensure that USDA-accredited certifying
agents have access to relevant records.
The proposal seeks to avoid undue
burden on certified organic slaughter
facilities which could have the effect of
reducing the availability of certified
organic slaughter facilities. Proposed
§ 205.242(b) regarding mammalian
slaughter would clarify the authority of
AMS, certifying agents, and State
organic programs to review records
related to humane handling and
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slaughter issued by the controlling
national, federal, or state authority, and
records of any required corrective
actions if certified operations are found
to have violated FSIS regulations
governing the humane handling of
mammalian livestock in connection
with slaughter (note that AMS has
separated mammalian from avian
slaughter requirements due to the
differences in how mammalian and
avian livestock are handled and
slaughtered). This new subsection
(proposed § 205.242(b)), titled
‘‘Mammalian Slaughter,’’ would govern
mammals defined as ‘‘livestock’’ or
‘‘exotic animals’’ under the FSIS
regulations. Under the FSIS regulations,
‘‘livestock’’ are cattle, sheep, swine,
goat, horse, mule, or other equines.
‘‘Exotic animals’’ include antelope,
bison, buffalo, cattalo, deer, elk,
reindeer, and water buffalo. These
regulations govern the handling and
slaughter of most mammalian animals
used for food in the United States and
apply to all operations that slaughter
these animals.
Proposed § 205.242(b)(1) would
require certified organic slaughter
facilities to be in full compliance with
the Humane Methods of Slaughter Act
(HMSA) of 1978 (7 U.S.C. 1901 et seq.)
and its implementing FSIS regulations,
as determined by FSIS. The HMSA
requires that humane methods be used
for handling and slaughtering livestock
and defines humane methods of
slaughter. In the HMSA, Congress found
‘‘that the use of humane methods in the
slaughter of livestock prevents needless
suffering; results in safer and better
working conditions for persons engaged
in the slaughtering industry; brings
about improvement of products and
economies in slaughtering operations;
and produces other benefits for
producers, processors, and consumers
which tend to expedite an orderly flow
of livestock and livestock products in
interstate and foreign commerce.’’ The
HMSA is referenced in the Federal Meat
Inspection Act (FMIA) at 21 U.S.C. 603
and is implemented by FSIS humane
handling and slaughter regulations
found at 9 CFR parts 309 and 313. The
FMIA provides that, for the purposes of
preventing inhumane slaughter of
livestock, the Secretary of Agriculture
will assign inspectors to examine and
inspect the methods by which livestock
are slaughtered and handled in
connection with slaughter in
slaughtering establishments subject to
inspection (21 U.S.C. 603(b)).
All establishments that slaughter
livestock, which include any certified
organic operations that slaughter
livestock, must meet the humane
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handling and slaughter requirements the
entire time they hold livestock in
connection with slaughter. FSIS
provides for continuous inspection in
livestock slaughter establishments, and
inspection program personnel verify
compliance with the humane handling
regulations during each shift that
animals are slaughtered, or when
animals are on site, even during a
processing-only shift. The regulations at
9 CFR part 313 govern the maintenance
of pens, driveways, and ramps; the
handling of livestock, focusing on their
movement from pens to slaughter; and
the use of different stunning and
slaughter methods. Notably, FSIS
inspection program personnel verify
compliance with the regulations at 9
CFR part 313 through the monitoring of
many of the same parameters proposed
by the NOSB in 2011, including prod
use, slips and falls, stunning
effectiveness, and incidents of egregious
inhumane handling.41 The regulations
at 9 CFR part 309 govern ante-mortem
inspection and ensure that only healthy
ambulatory animals are slaughtered, and
that non-ambulatory are euthanized and
disposed of promptly. FSIS has a range
of enforcement actions available
regarding violations of the humane
slaughter requirements for livestock,
including noncompliance records,
regulatory control actions, and
suspensions of inspection.
Further, FSIS encourages livestock
slaughter establishments to use a
systematic approach to humane
handling and slaughter to best ensure
that they meet the requirements of the
HMSA, FMIA, and implementing
regulations.42 With a systematic
approach, establishments focus on
treating livestock in such a manner as to
minimize excitement, discomfort, and
accidental injury the entire time they
hold livestock in connection with
slaughter. Establishments may develop
written animal handling plans and share
them with FSIS inspection program
personnel.
AMS proposes to add a new
§ 205.242(b)(2) for those certified
organic facilities that slaughter exotic
animals and voluntarily request FSIS
inspection. FSIS also provides, upon
request, voluntary inspection of certain
exotic animal species on a fee-forservice basis under the authority of the
Agricultural Marketing Act of 1946.
FSIS regulates the humane handling of
41 FSIS Directive 6900.2, Revision 2, Humane
Handling and the Slaughter of Livestock, August 15,
2011.
42 Humane Handling and Slaughter Requirements
and the Merits of a Systematic Approach to Meet
Such Requirements, FSIS, 69 FR 54625, September
9, 2004.
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the slaughter of exotic animals under
the regulations at 9 CFR part 352.10,
which require that exotic animals be
slaughtered and handled in connection
with slaughter in accordance with the
requirements for livestock at 9 CFR part
309 and 9 CFR part 313. Violation of
these regulations can result in a denial
of service by FSIS.
Proposed § 205.242(b)(3) would
require that all certified organic
slaughter facilities provide any FSIS
noncompliance records or corrective
action records relating to humane
handling and slaughter to certifying
agents during inspections or upon
request. Not all violations of FSIS
regulations result in a suspension of
FSIS inspection services. In some cases,
FSIS will issue a noncompliance record
and the slaughter facility must perform
corrective actions to bring the slaughter
facility back into compliance. These
records would be required to be
provided to certifying agents during
inspection or upon request to verify that
the slaughter facility is in full
compliance and has taken all corrective
actions. If records revealed that an
organic operation had not taken
corrective actions required by FSIS
within the time period allowed by FSIS,
the certifying agent could initiate
actions to suspend the facility’s organic
certification. While this action would be
separate from any FSIS actions, it would
impact the facility’s capacity to handle
organic animals.
In addition, AMS recognizes that in
the United States, some slaughter
facilities are regulated by the State for
intra-state meat sales. In foreign
countries, foreign governments may be
the appropriate regulatory authority for
humane slaughter inspections. In all
cases, the relevant humane slaughter
noncompliance records and corrective
action records would be required to be
provided to certifying agents during the
inspections or upon request.
2. Slaughter and the Handling of Poultry
in Connection With Slaughter
AMS proposes to add § 205.242(c)
regarding avian slaughter facilities.
Proposed § 205.242(c)(1) would clarify
the authority of AMS, certifying agents,
and State organic programs to review
noncompliance records related to the
use of good manufacturing practices in
connection with slaughter issued by the
controlling national, federal, or state
authority, and records of subsequent
corrective action if certified operations
are found to have violated the Poultry
Products Inspection Act (PPIA)
requirements regarding poultry
slaughter, violated the FSIS regulations
regarding the slaughter of poultry, or
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failed to use good commercial practices
in the slaughter of poultry, as
determined by FSIS. Under the PPIA
and the FSIS regulations, poultry are
defined as chickens, turkeys, ducks,
geese, guineas, ratites, and squabs.
These species constitute most avian
species slaughtered for human food in
the United States. However, the
proposed organic standards for avian
slaughter would apply to all species
biologically considered avian or birds.
The NOSB did not directly address
avian slaughter requirements. However,
AMS is proposing to add avian
slaughter requirements for consistency
with the new mammalian slaughter
requirements and to provide consistent
slaughter requirements for certified
organic operations.
While the HMSA does not apply to
poultry, under the PPIA at 21 U.S.C.
453(g)(5), a poultry product is
considered adulterated if it is in whole,
or in part, the product of any poultry
that has died by other means than
slaughter. FSIS regulations, in turn,
require that poultry be slaughtered in
accordance with good commercial
practices in a manner that will result in
thorough bleeding of the poultry carcass
and will ensure that breathing has
stopped before scalding (9 CFR 381.65
(b)). Compliance with FSIS Directives
6100.3 and 6910.1, as determined by
FSIS, would be required under the
proposed rule.
In a 2005 Federal Register Notice,
FSIS reminded all poultry slaughter
establishments that live poultry:
. . . must be handled in a manner that is
consistent with good commercial practices,
which means they should be treated
humanely. Although there is no specific
federal humane handling and slaughter
statute for poultry, under the PPIA, poultry
products are more likely to be adulterated if,
among other circumstances, they are
produced from birds that have not been
treated humanely, because such birds are
more likely to be bruised or to die other than
by slaughter.43
FSIS also suggested in this Notice that
poultry slaughter establishments
consider a systematic approach to
handling poultry in connection with
slaughter. FSIS defined a systematic
approach as one in which
establishments focus on treating poultry
in such a manner as to minimize
excitement, discomfort, and accidental
injury the entire time that live poultry
is held in connection with slaughter.
Although the adoption of such an
approach is voluntary, it would likely
43 Treatment of Live Poultry before Slaughter,
FSIS, 70 FR 56624, September 28, 2005.
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better ensure that poultry carcasses are
unadulterated.
FSIS inspection program personnel
verify that poultry slaughter is
conducted in accordance with good
commercial practices in the pre-scald
area of slaughter establishments, where
they observe whether establishment
employees are mistreating birds or
handling them in a way that will cause
death or injury, prevent thorough
bleeding, or result in excessive bruising.
Examples of noncompliant mistreatment
could include breaking the legs of birds
to hold the birds in the shackle, birds
suffering or dying from heat exhaustion,
and breathing birds entering the
scalder.44 Also, in 2015, FSIS issued
specific instructions to inspection
program personnel for recording
noncompliance with the requirement for
the use of good commercial practices in
poultry slaughter.45
Proposed § 205.242(c)(2) would
require that all certified organic
slaughter facilities provide, during the
annual organic inspection, any FSIS
noncompliance records and corrective
action records related to the use of good
manufacturing practices in the handling
and slaughter of poultry in order to
determine that slaughter facilities have
addressed any outstanding FSIS
noncompliances and are in good
standing with FSIS. Not all violations of
FSIS regulations result in a suspension
of inspection services. In some cases,
FSIS will issue a noncompliance record
and the slaughter facility must perform
corrective actions to bring the slaughter
facility back into compliance. These
records must be provided to the
certifying agent at inspection or upon
request to verify that the slaughter
facility is operating in compliance with
FSIS regulations and is addressing/has
addressed all corrective actions. If
records revealed that an organic
operation had not taken corrective
actions required by FSIS within the time
period allowed by FSIS, the certifying
agent could initiate actions to suspend
the facility’s organic certification. While
this action would be separate from any
FSIS actions, it would impact the
facility’s capacity to handle organic
animals. In addition, AMS recognizes
that some poultry slaughter facilities in
the United States are regulated by the
State for intra-state poultry sales. In
foreign countries, foreign governments
may be the appropriate regulatory
44 FSIS Directive 6100.3, Revision 1, Ante-Mortem
and Post-Mortem Poultry Inspection, April 30,
2009.
45 FSIS Notice 07–15, Instructions for Writing
Poultry Good Commercial Practices Noncompliance
Records and Memorandum of Interview Letters for
Poultry Mistreatment, January 21, 2015.
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authority for poultry slaughter
inspections. In all cases, the relevant
noncompliance records and corrective
action records would be required to be
provided to the certifying agent during
inspections or upon request.
Unlike the proposed requirements for
livestock slaughter inspection,
exemptions from poultry slaughter
inspection exist for some poultry that is
going to be sold to the public. The PPIA
exempts from continuous inspection
some establishments that slaughter
poultry based on various factors, such as
volume of slaughter and the nature of
operations and sales. This includes
persons custom slaughtering and
distributing from their own premises
directly to household consumers,
restaurants, hotels, and boarding
houses, for use in their own dining
rooms, or in compliance with religious
dietary laws (21 U.S.C. Chapter 10).
AMS is proposing to add handling
and slaughter standards for such poultry
that is either exempt from or not
covered by the inspection requirement
of the PPIA. These proposed
requirements would serve to establish a
consistent and basic standard for the
humane handling of organic poultry,
regardless of an operation’s size or
method of sales, for example.
Specifically, proposed § 205.242(c)(3)(i)
would prohibit hanging, carrying, or
shackling any lame birds by their legs.
Birds with broken legs or injured feet
may suffer needlessly if carried or hung
by their legs. Such birds would be
required to either be euthanized or
made insensible before being shackled.
AMS also is proposing
(§ 205.242(c)(3)(ii)) to include a
requirement that all birds that were
hung or shackled on a chain or
automated slaughter system be stunned
prior to exsanguination (bleeding). This
proposed requirement would not apply
to small-scale producers who do not
shackle the birds or use an automated
system but who instead place the birds
in killing cones before exsanguinating
them without stunning. This proposed
requirement would not apply to ritual
slaughter establishments (e.g., Kosher or
Halal slaughter facilities), who are
required to meet all the humane
handling regulatory requirements except
stunning prior to shackling, hoisting,
throwing, cutting, or casting. Finally,
proposed § 205.242(c)(3)(iii) would
require that all birds be irreversibly
insensible prior to being placed in the
scalding tank.
IV. Related Documents
Documents related to this proposed
rule include the Organic Foods
Production Act of 1990, as amended, (7
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U.S.C. 6501–6524) and its implementing
regulations (7 CFR part 205). The NOSB
deliberated and made the
recommendations described in this
proposal at public meetings announced
in the following Federal Register
notices: 67 FR 19375 (April 19, 2002);
74 FR 46411 (September 9, 2009); 75 FR
57194 (September 20, 2010); and 76 FR
62336 (October 7, 2011). NOSB
meetings are open to the public and
allow for public participation.
AMS published a series of past
proposed rules that addressed, in part,
the organic livestock requirements at: 62
FR 65850 (December 16, 1997); 65 FR
13512 (March 13, 2000); 71 FR 24820
(April 27, 2006); 73 FR 63584 (October
24, 2008), and 81 FR 21956 (April 13,
2016). Past final rules relevant to this
topic were published at: 65 FR 80548
(December 21, 2000); 71 FR 32803 (June
7, 2006); and 75 FR 7154 (February 17,
2010). AMS activities and documents
that followed publication of the January
19, 2017 OLPP final rule (82 FR 7042)
are detailed above in the AMS POLICY
section.
V. Executive Orders 12866 and 13563—
Executive Summary
The Regulatory Impact Analysis and
Regulatory Flexibility Analysis are
available at https://www.regulations.gov
in the ‘‘docket’’ for this proposed rule.
The docket can be found by searching
for ‘‘AMS–NOP–21–0073’’ at https://
www.regulations.gov. Below is an
executive summary of the analyses.
AMS is writing this proposed rule to
clarify and ensure consistent
application of the USDA organic
standards and therefore mitigate
information asymmetries and associated
costs amongst certifying agents,
producers, and consumers. This action
will augment the USDA organic
livestock production regulations with
clear provisions to fulfill the purposes
of the Organic Foods Production Act
(OFPA) (7 U.S.C. 6501–6524): to assure
consumers that organically produced
products meet a consistent, uniform
standard and to further facilitate
interstate commerce of organic
products. OFPA mandates that detailed
livestock regulations be developed
through notice and comment
rulemaking (7 U.S.C. 6509(g)) and
USDA did so when it published the
final rule on the National Organic
Program (65 FR 80547; December 21,
2000). In 2010, AMS published a final
rule (75 FR 7154; February 17, 2010)
clarifying the pasture and grazing
requirements for organic ruminant
livestock. This proposed rule would
provide clarity for the production of
organic livestock and poultry, consistent
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with recommendations provided by
USDA’s Office of Inspector General and
nine separate recommendations from
the NOSB.
This proposed rule would add
requirements for the production,
transport, and slaughter of organic
livestock and poultry. The proposed
provisions for outdoor access and space
for organic poultry production are the
focal areas of this rule. Currently,
organic poultry are already required to
have outdoor access, but this varies
widely in practice.46 Some organic
poultry operations provide large, openair outdoor areas, while other operations
provide minimal outdoor space or use
screened and covered enclosures
commonly called ‘‘porches’’ to meet
outdoor access requirements. This
variability leads to additional costs for
some producers and consumers, and
may also create consumer confusion
about the meaning of the USDA organic
label.
The proposed changes would better
define standards of outdoor access for
poultry, taking into account stakeholder
input, as mandated by OFPA.
Specifically, the changes address the
wide disparities in production practices
within the organic poultry sector. These
provisions support an open, fair, and
equitable market for producers who
choose to pursue organic certification by
providing standards that would apply to
all organic livestock operations.
Similarly, these provisions would
reduce consumer search costs and
welfare loss by standardizing the
attributes of organic livestock and
poultry products. In the long run, these
provisions may help minimize the risk
to consumer confidence brought on by
these costs.
This economic impact analysis
describes the cost impacts and benefits
of the proposed rule, with a focus on
organic egg and broiler producers,
because these types of operations may
face additional production costs as a
result of this proposed rule. AMS is
evaluating this proposed rule’s potential
benefits against the costs of:
• Additional indoor space for broilers
• Additional outdoor space for layers
To project costs, AMS assessed
current (baseline) conditions and
considered how producers might
46 The 2013 NAHMS poultry survey reports that
36% of organic hens covered in the survey have at
least 2 sq. ft. per bird (equivalent to 2.25 lbs./sq. ft.)
of outdoor space and 35% of hens have outdoor
access via a porch system or covered area. Other
studies have found between 15.5–59% of organic
egg production has at least 2 sq. ft. of outdoor space.
https://www.aphis.usda.gov/aphis/ourfocus/
animalhealth/monitoring-and-surveillance/nahms/
NAHMS_Poultry_Studies.
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respond to the proposed requirements.
Based on NOSB deliberations, surveys
of organic poultry producers, and public
comments on previous proposed rules,
we determined that the outdoor access/
stocking density requirements for layers
and indoor stocking density
requirements for broilers would drive
the costs of this proposed rule. For
organic layers, the key factor affecting
compliance is the availability of land to
accommodate all birds at the required
stocking density. In our assessment of
projected costs and benefits of the
proposed rule and policy alternatives,
we consider four scenarios that
represent a combination of policy
options and market responses to policy
implementation:
Scenario 1: No Rule. There are no
costs and no benefits because the status
quo is maintained.
Scenario 2: Growth Prevented and
Exit in Year 6 (5-year Co-Proposal).
Existing producers and those certified
within three years of the rule’s effective
date have five years from the effective
date (e.g., 60 days after publication of
final rule) to comply with the outdoor
space requirements for layers. Those
certified more than three years after the
rule’s effective date must comply
immediately. Producers that account for
approximately half of existing organic
egg production are assumed to comply
with the outdoor space requirement on
the fifth anniversary of the rule’s
effective date while maintaining current
production levels; the other half move
from organic to the cage-free, nonorganic market at that time. There is
assumed to be no growth in impacted
organic egg production once the final
rule is effective.
Scenario 3: Growth and Exit in Year
6 (5-year Co-Proposal). The policy is the
same as in Scenario 2, it is assumed that
producers accounting for approximately
half of existing organic egg production
leave organic production to join the
cage-free, non-organic market five years
after the rule’s effective date (lesser
amounts of cage-free production are
new in the meantime). The other half of
production is assumed to come into
compliance with the rule at that time.
Organic egg production grows at a
slower rate than in Scenario 1 (i.e., if
there was no rule) in the five years after
the rule’s effective date as there is
assumed to be only growth among those
producers that plan to come into
compliance with the rule, not among
those planning to leave for the cage-free
market. In Scenario 3 there is a
significantly higher level of organic egg
production than in Scenario 2 at the end
of five years because there is growth in
organic egg production after the rule’s
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effective date. Costs and benefits
include, among others, effects
calculated starting in year four for new
entrants certified more than three years
after the rule’s effective date, and
starting in year six for existing
producers and new entrants starting
within three years of the rule’s effective
date.
Scenario 4: Growth and Exit in Year
16 (15-year Co-Proposal). The rule is
implemented with a 15-year grace
period for implementation of the layer
outdoor space requirement for existing
operations and those certified within
three years of the rule’s effective date.
Organic egg production among
operations that will not be compliant in
year 16 is frozen at year 1 levels. The
proportion of existing production that
will become compliant in year 16 grows
at historical rates for the industry. Costs
and benefits include, among others,
effects calculated starting in year four
for new entrants certified more than
three years after the rule’s effective date.
Regarding the organic broiler
industry, AMS assumed that organic
broiler producers would build enough
new facilities to comply with the new
indoor stocking density requirement
and maintain their current production
level while remaining in the organic
market.47
Costs incurred by new entrants after
the rule’s publication are counted for all
new production starting in year two.
Costs for all other operators do not
accrue until this rule is fully
implemented (i.e., three years after the
effective date for broiler producers and
five years after the effective date for
layer producers).
In summary, AMS estimates that the
rule will increase total production costs
for broiler and layer operations between
$9.3 million and $14.6 million annually.
This range spans three producer
response scenarios, two implementation
periods for the outdoor space
requirements, and a no-rule scenario
(see Table 2).
We estimate the annual costs for
organic egg production are $4.6 million
to $8.3 million (discounted annualized
value) if 50% of organic egg production
in 2022 transitions to the cage-free egg
market by the 5-year implementation
date. Under this scenario the shift
would also result in approximately
$113.6 million to $172.6 million
47 Additional land needed to meet indoor space
requirements in broiler production is on average
much smaller than the land needed for those
adjusting to the requirements for outdoor access.
Additionally, past public comment and stakeholder
feedback have indicated that broiler producers
would seek to maintain current levels of
production.
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(discounted annualized value) in
production that moves from organic to
cage-free egg production. We estimate
the annual costs for organic egg
production are $3.6 million to $4.6
million (discounted annualized value)
with the co-proposed 15-year
implementation date; under this
scenario, the shift would also result in
approximately $62.2 million to $77.8
million (discounted annualized value)
in production that moves from organic
to cage-free egg production.
We estimate that the annual costs for
organic broiler production account for
$5.7 million to $6.3 million of the above
totals. This reflects costs to build
additional housing for more space per
bird to meet the indoor stocking density
requirement. This rule will have broad,
important benefits for the organic sector
as a whole that are difficult to quantify.
Standards that more closely align to
consumer expectations will sustain
demand and support the growth of the
$62 billion U.S. organic market.48
Furthermore, clear parameters for
production practices ensure fair
competition among producers by
facilitating equitable certification and
enforcement decisions.
To quantify the benefits of this
proposed rule, AMS used research that
estimated consumers’ willingness-topay for outdoor access to be between
$0.16 and $0.25 per dozen eggs. Based
on this, AMS estimates that the benefits
for layer operations would range
between $11.6 to 14.9 million (under
Scenario 4) and $23.3 to 27.1 million
annually (under Scenario 3).
The benefits for broilers are calculated
using a willingness-to-pay of $0.34/lb.
Based on this, AMS estimates that the
annual discounted benefits for broiler
operations would range between $97
million and $107 million. AMS
estimates that the total annualized
discounted benefits would be between
48583
$109 million and $134 million for eggs
and broilers.
In the Regulatory Flexibility Analysis,
AMS reports that large poultry
operations would have higher
compliance costs than small operations
on average. Many larger organic layer
operations will need more land to
comply with the outdoor access
requirements, and some operations will
not be able to modify their houses to
meet the proposed outdoor access
requirements due to how they are
arranged on the farm.
Table 1 presents estimated net
benefits for the models AMS calculated.
These models use the 5-year and 15-year
implementation periods (with growth)
for the layer outdoor access/stocking
density requirements and the 3-year
implementation period for the broiler
compliance horizon. Total annual
discounted net benefits range between
$99 million and $119 million.
TABLE 1—EXECUTIVE SUMMARY: COSTS AND BENEFITS FOR EGGS AND BROILERS
Benefits (Consumer Willingness to Pay) .........................................................
Benefits with 80% Breaker Egg Adjustment ....................................................
Cost (Change in Average Total Cost of Production) .......................................
Net Benefit per Unit .........................................................................................
20-Year Annualized Discounted Net Benefits (3%) ($1,000) ..........................
20-Year Annualized Discounted Net Benefits (7%) ($1,000) ..........................
Average Annual Domestic Information Collection Cost ..................................
Proposed rule
(5-year
compliance—
No Growth)
Proposed rule
(5-year
compliance—
Growth)
Proposed rule
(15-year
compliance)
Proposed
rule
Eggs
(per dozen)
Eggs
(per dozen)
Eggs
(per dozen)
Broilers
(per pound)
$0.21
0.16
0.05
0.11
10,429
9,236
........................
$0.21
0.16
0.05
0.11
18,757
16,132
........................
$0.21
0.16
0.05
0.11
10,278
8,027
........................
$0.34
0.02
0.32
101,011
91,418
$194,777
TABLE 2—FOUR SCENARIOS: MARKET RESPONSES TO OUTDOOR ACCESS POLICIES FOR LAYERS
Assumed conditions
Affected population
Costs
Benefits
Eggs newly
labeled cagefree
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Millions of Dollars
Scenario 1: No Rule/No Change ....................
Scenario 2: 50% of organic layer production
in year 6, moves to the cage-free market.
Growth prevented.
Scenario 3: 50% of organic layer production
in year 6, moves to the cage-free market..
Growth considered ..........................................
Scenario 4: Organic layer populations continue historical growth rates after rule and
existing firms are grandfathered until the
end of year 15.
All broiler production in year 4 complies with
the proposed rule.
48 OTA,
No producers or consumers ..........................
Organic layer production at full implementation of rule (after year 5).
$0.0
$4.6–$5.2
$0.0
$13.9–$15.7
$0.0
$146.4–$172.6
Organic layer production at full implementation of rule (after year 5). Compliance from
growth starting in year 4.
Organic layer and production at full implementation of rule (after year 15). Compliance from growth starting in year 4.
$7.2–$8.3
$23.3–$27.1
$113.6–$131.6
$3.6–$4.6
$11.6–$14.9
$62.2–$77.8
Current broiler operations at full implementation of the rule (after year 3).
$5.7–$6.3
$97.1–$107.3
N/A
2021 Industry Survey.
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VI. Executive Order 12988
Executive Order 12988 instructs each
executive agency to adhere to certain
requirements in the development of new
and revised regulations in order to avoid
unduly burdening the court system.
This proposed rule cannot be applied
retroactively.
States and local jurisdictions are
preempted under the OFPA from
creating programs of accreditation for
private persons or State officials who
want to become certifying agents of
organic farms or handling operations. A
governing State official would have to
apply to USDA to be accredited as a
certifying agent, as described in OFPA
at 7 U.S.C. 6514. States are also
preempted under OFPA at 7 U.S.C. 6503
and 6507 from creating certification
programs to certify organic farms or
handling operations unless the State
programs have been submitted to, and
approved by, the USDA Secretary as
meeting the requirements of the OFPA.
Pursuant to 7 U.S.C. 6507(b)(2), a
State organic certification program may
contain additional requirements for the
production and handling of organically
produced agricultural products that are
produced in the State and for the
certification of organic farm and
handling operations located within the
State under certain circumstances. Such
additional requirements must: (a)
Further the purposes of the OFPA, (b)
not be inconsistent with the OFPA, (c)
not be discriminatory toward
agricultural commodities organically
produced in other States; and (d) not be
effective until approved by the
Secretary.
Pursuant to 7 U.S.C. 6519, this
proposed rule would not alter the
authority of the Secretary under the
Federal Meat Inspection Act (21 U.S.C.
601–624), the Poultry Products
Inspection Act (21 U.S.C. 451–471), or
the Egg Products Inspection Act (21
U.S.C. 1031–1056), concerning meat,
poultry, and egg products, nor any of
the authorities of the Secretary of Health
and Human Services under the Federal
Food, Drug and Cosmetic Act (21 U.S.C.
301–399i), nor the authority of the
Administrator of the EPA under the
Federal Insecticide, Fungicide and
Rodenticide Act (7 U.S.C. 136–136(y)).
Furthermore, 7 U.S.C. 6520 provides
for the Secretary to establish an
expedited administrative appeals
procedure under which persons may
appeal an action of the Secretary, the
applicable governing State official, or a
certifying agent under this title that
adversely affects such person or is
inconsistent with the organic
certification program established under
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this title. The OFPA also provides that
the U.S. District Court for the district in
which a person is located has
jurisdiction to review the Secretary’s
decision.
VII. Executive Order 13175
Executive Order 13175 requires
Federal agencies to consult and
coordinate with Tribes on a
government-to-government basis on
policies that have Tribal implications,
including regulations, legislative
comments, or proposed legislation.
Additionally, other policy statements or
actions that have substantial direct
effects on one or more Indian Tribes, the
relationship between the Federal
Government and Indian Tribes, or on
the distribution of power and
responsibilities between the Federal
Government and Indian Tribes also
require consultation. This regulation
discloses that there are tribal
implications. AMS hosted a virtual
tribal consultation meeting on
September 9, 2021, where this proposed
rule was discussed with tribal leaders.
No questions or concerns were brought
to AMS’s attention about this rule by
any tribal leaders at the meeting. If a
tribe requests consultation in the future,
AMS will work with the Office of Tribal
Relations to ensure meaningful
consultation is provided.
VIII. Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501–
3520) (PRA), AMS is requesting OMB
approval for a new information
collection totaling 102,088 hours for the
reporting and recordkeeping
requirements contained in this proposed
rule. AMS is using the previously
assigned OMB control number 0581–
0293 even though this is new burden
due to a proposed rule. OMB previously
approved information collection
requirements associated with the NOP
and assigned OMB control number
0581–0191. AMS intends to merge this
new information collection, upon OMB
approval, into the approved 0581–0191
information collection. Below, AMS has
described and estimated the new
information collection and
recordkeeping burden, i.e., the amount
of time and cost of labor, for entities to
prepare and maintain information to
participate in this voluntary labeling
program. The OFPA, as amended,
provides authority for this action.
Title: National Organic Program:
Organic Livestock and Poultry
Standards.
OMB Control Number: 0581–0293.
Expiration Date of Approval: 3 years
from OMB date of approval.
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Type of Request: New collection.
Abstract: Information collection and
recordkeeping is necessary to
implement reporting and recordkeeping
necessitated by amendments to
§§ 205.238 and 205.239 and the addition
of §§ 205.241 and 205.242 for additional
animal welfare standards for organic
livestock and poultry production under
the USDA organic regulations. The
Organic Foods Production Act (OFPA)
authorizes the further development of
livestock production standards (7 U.S.C.
6509). This proposed action is necessary
to address multiple recommendations
provided to USDA by the NOSB to add
specificity about livestock and poultry
production practices with the purpose
of ensuring consumers that conditions
and practices for livestock and poultry
products labeled as organic encourage
and accommodate natural behaviors and
utilize preventive health care and
humane slaughter practices.
All certified organic operations must
develop and maintain an organic system
plan (OSP) to comply with the USDA
organic regulations (§ 205.201). The OSP
must include a description of practices
and procedures to be performed and
maintained, including the frequency
with which they will be performed.
Under this proposed rule, organic
livestock and poultry operations would
be subject to additional reporting
requirements. The proposed
requirements in §§ 205.238, 205.239,
205.241, and 205.242 would require
livestock and poultry operations to
provide specific documentation as a
part of the OSP that describes livestock
and poultry living conditions (including
minimum space requirements, outdoor
access, preventive health care practices
[e.g., physical alterations, euthanasia],
and humane transportation and
slaughter practices). This
documentation would enable certifying
agents to make consistent certification
decisions and facilitate fairness and
transparency for the organic producers
and consumers that participate in this
market. This proposed action and its
associated information collection would
promulgate changes to the USDA
organic regulations consistent with the
OFPA.
The PRA also requires AMS to
measure the recordkeeping burden.
Under the USDA organic regulations,
each producer is required to maintain
and make available upon request, for
five years, such records as are necessary
to verify compliance (§ 205.103).
Certifying agents are required to
maintain records for 5 to 10 years,
depending on the type of record
(§ 205.510(b)), and make these records
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available for inspection upon request
(§ 205.501(a)(9)).
The new information that livestock
and poultry operations would be
required to provide for certification
would assist certifying agents and
inspectors in the efficient and
comprehensive evaluation of these
operations and would impose an
additional recordkeeping burden for
livestock and poultry operations.
Certifying agents currently involved in
livestock certification are required to
observe the same recordkeeping
requirements to maintain accreditation.
AMS expects that this proposed rule
would increase the recordkeeping
burden on certified operations and
certifying agents during the first year of
implementation and would then become
routine to maintain. In addition,
livestock and poultry operations that
claim organic status in direct-toconsumer sales (but are exempt from
organic certification because they sell
$5,000 or less of organically managed
animal products) must maintain records
to support their claim in the event of a
complaint. State organic programs
enforce the OFPA in its state under the
authority of AMS, and they are also
impacted by these requirements. AMS
expects that this proposed rule would
not significantly increase the
recordkeeping burden on exempt
operations or state organic programs.
Reporting and recordkeeping are
essential to the integrity of the organic
certification system. A clear paper trail
is a critical tool for verifying that
practices meet the mandate of OFPA
and the USDA organic regulations. The
information collected supports the AMS
mission, program objectives, and
management needs by enabling AMS to
assess the efficiency and effectiveness of
the NOP. The information also affects
decisions because it is the basis for
evaluating compliance with the OFPA
and USDA organic regulations,
administering the NOP, establishing the
cost of the program, and facilitating
management decisions and planning. It
also supports administrative and
regulatory actions to address
noncompliance with the OFPA and
USDA organic regulations.
This information collection is only
used by the certifying agent and
authorized representatives of USDA,
including AMS and NOP staff.
Certifying agents, including any
affiliated organic inspectors, and USDA
are the primary users of the information.
Respondents
AMS identified four types of entities
(respondents)—organic livestock and
poultry operations, accredited certifying
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agents, inspectors, and state organic
programs—that will need to submit and
maintain information in order to
participate in organic livestock and
poultry certification. To more precisely
understand the paperwork costs of this
proposed rule, AMS calculates the
potential impacts utilizing domestic and
foreign labor rates per hour plus
benefits.
For each type of respondent, we
describe the general paperwork
submission and recordkeeping activities
and estimate: (i) the number of
respondents; (ii) the hours they spend,
annually, completing the paperwork
requirements of this labeling program;
and (iii) the costs of those activities
based on prevailing domestic 49 and
foreign 50 wages and benefits.51 52
Total (Domestic and Foreign)
Information Collection Cost (Reporting
and Recordkeeping) of Proposed Rule:
$4,138,397
For the 7,559 reporting and
recordkeeping respondents, the total
information collection for both reporting
and recordkeeping is 102,088 hours
with 40,673 total responses, 5.38
responses per respondent, and 2.51
hours per response at a total burden cost
of $4,138,397 for both reporting (Table
1) and recordkeeping (Table 2). These
are estimates of costs for respondents to
develop procedures, receive training,
and perform tasks for the first time.
AMS estimates that as livestock and
poultry producers adapt to the proposed
requirements in §§ 205.238, 205.239,
205.241, and 205.242, the labor hours
for the new requirements are one-time
costs and will become routine to
maintain. These costs will be merged
into the overall information collection
burden for the program. All costs are
rounded.
49 The source of the specific hourly wage rates
identified below is the National Compensation
Survey: Occupational Employment and Wages, May
2021, published by the Bureau of Labor Statistics.
Bureau of Labor Statistics, Occupational
Employment and Wages, https://www.bls.gov/oes/
current/oes_nat.htm.
50 The source of the data is based on average
World Bank wage rates for countries with USDAaccredited certifying agents which are 70.3% of
U.S. labor rates. https://data.worldbank.org/
indicator/NY.GDP.PCAP.PP.CD.
51 Bureau of Labor Statistics News Release on
Employer Costs for Employee Compensation, Wages
account for 68.7% and Benefits account for 31.3%
of total average employer compensation costs, June
18, 2020: https://www.bls.gov/news.release/
ecec.nr0.htm.
52 The source of compensation rates is based on
an average of Organization for Economic CoOperation and Development (OECD) benefits
compensation rates at 34.63% of wage rates for
countries with USDA-accredited certifying agents.
https://stats.oecd.org/Index.aspx?DataSet
Code=AWCOMP.
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1. Operations. In order to obtain and
maintain certification, domestic and
foreign organic operations will need to
develop and maintain an OSP. Livestock
and poultry producers and handlers will
need to submit the following
information to certifying agents: an
application for certification, detailed
descriptions of specific practices, and
annual updates to continue certification
and to report changes in their practices.
The OSP is a requirement for all organic
operations and the USDA organic
regulations describe what information
must be included (§ 205.201). This
proposed rule describes the additional
information in §§ 205.238, 205.239,
205.241, and 205.242 that would need
to be included in a livestock and poultry
operation’s organic system plan in order
to assess compliance with these
proposed new requirements. Certified
operations are also required to keep
records about their organic production
and/or handling for at least five years
(§ 205.103(b)(3)).
AMS estimated the number of
livestock and poultry operations that
would be affected by this proposed
action. AMS estimates that 6,174
currently certified organic domestic and
foreign livestock and poultry operations
will be subject to the amendments in
§§ 205.238, 205.239, 205.241, and
205.242. Based on average growth of
5.9% in livestock and poultry
operations under current rules,53 AMS
expects to add 364 operations to the
6,174 operations currently certified for
livestock or poultry production. In
addition, AMS estimates that there are
713 livestock and poultry operations
that claim organic status in direct-toconsumer sales (but are exempt from
organic certification because they sell
$5,000 or less of organically managed
animal products) that will be impacted
by the new recordkeeping
requirements.54
AMS estimates the average collection
and recordkeeping costs per organic
livestock and producer poultry to be
$314.47. This estimate is based on an
average of 7.3 labor hours (53,018 total
hours per 7,252 certified and exempt
organic livestock and poultry
operations) at $48.49 per labor hour,55
53 Organic Integrity Database: https://
organic.ams.usda.gov/integrity/.
54 USDA National Ag Statistics Service, Census of
Agriculture, 2019 Organic Survey: https://
www.nass.usda.gov/Publications/AgCensus/2017/
Online_Resources/Organics/.
55 National Compensation Survey: Occupational
Employment and Wage Estimates, May 2020,
published by the Bureau of Labor Statistics. 11–
9013 Farmers, Ranchers, and Other Agricultural
Managers. https://www.bls.gov/oes/current/oes_
nat.htm.
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including 31.3% benefits,56 and $34.95
per labor hour,57 including 34.63%
benefits,58 for an organic domestic and
foreign livestock or poultry producer,
respectively. This estimate includes
operations that make organic claims
about their product but are exempt from
certification because they only sell
$5,000 or less organic animal and
poultry products.
2. Certifying agents. Certifying agents
are State, private, or foreign entities
accredited by USDA to certify domestic
and foreign livestock producers and
handlers as organic in accordance with
the OFPA and USDA organic
regulations. Certifying agents determine
if an operation meets organic
requirements, using detailed
information from the operation about its
specific practices and on-site inspection
reports from organic inspectors.
Currently, there are 75 certifying agents
accredited under NOP that are based in
the U.S. and in foreign countries. AMS
accredits 57 certifying agents for the
scope of livestock to certify organic
livestock and poultry operations. AMS
assumes that all certifying agents
accredited for the scope of livestock will
evaluate livestock and poultry
operations for compliance with the
USDA organic regulations and will
therefore be subject to the proposed
requirements in §§ 205.238, 205.239,
205.241, and 205.242.
Each entity seeking to continue USDA
accreditation for the scope of livestock
will need to submit information
documenting its business practices
including certification, enforcement and
recordkeeping procedures, personnel
qualifications, and the provision of
training for certification review
personnel and inspectors (§ 205.504).
AMS will review that information
during their next scheduled on-site
assessments, which occur at least twice
every five years to determine whether to
continue accreditation for the scope of
livestock. Certifying agents will need to
update their information, provide the
results of personnel performance
56 Bureau of Labor Statistics News Release on
Employer Costs for Employee Compensation, Wages
account for 68.7% and Benefits account for 31.3%
of total average employer compensation costs, June
18, 2020: https://www.bls.gov/news.release/
ecec.nr0.htm.
57 The source of the data is based on average
World Bank wage rates for countries with USDAaccredited certifying agents, which were 70.3% of
U.S. labor rates in 2020. https://data.worldbank.org/
indicator/NY.GDP.PCAP.PP.CD.
58 The source of compensation rates is based on
an average of Organization for Economic CoOperation and Development (OECD) benefits
compensation rates at 34.63% of wage rates for
countries with USDA-accredited certifying agents.
https://stats.oecd.org/
Index.aspx?DataSetCode=AWCOMP.
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evaluations and the internal review of
its certification activities, and document
the training provided to certification
review personnel and inspectors
(§ 205.510) to comply with the proposed
requirements.
AMS projects that the additional
components of organic system plans for
livestock and poultry producers may
entail longer review times of documents
and longer inspection times to evaluate
operations under these proposed new
requirements for the first time. AMS
estimates the average collection and
recordkeeping costs per certifying agent
will be $25,759. This estimate of the
average cost for each of the 57 certifying
agents is based on an average of 609
labor hours (34,740 total hours across 57
certifiers) to prepare procedures to
certify operations under these new
requirements, certify an average of 115
livestock or poultry operations (6,539
total certified operations across 57
certifiers), provide training to their
certification review personnel and
inspectors, and store the records at
$47.73 per labor hour,59 including
31.7% benefits,60 and $34.40 per labor
hour,61 including 34.63% benefits 62 for
a domestic and foreign certifying agent,
respectively. These are one-time costs
that will become routine to maintain.
3. Inspectors. Inspectors conduct onsite inspections of organic operations
and operations applying for certification
and report their findings to the
certifying agent. Inspectors may be the
certifying agents themselves, employees
of the certifying agents, or individual
contractors. The USDA organic
regulations call for certified operations
59 National Compensation Survey: Occupational
Employment and Wages, May 2020, published by
the Bureau of Labor Statistics. Bureau of Labor
Statistics, Occupational Employment and Wages,
May 2021. 59 The labor rate for certification review
staff is based on Occupational Employment
Statistics group 13–1041, Compliance Officers.
Compliance officers examine, evaluate, and
investigate eligibility for or conformity with laws
and regulations governing contract compliance of
licenses and permits, and perform other compliance
and enforcement inspection and analysis activities
not classified elsewhere. https://www.bls.gov/oes/
current/oes_nat.htm.
60 Bureau of Labor Statistics News Release on
Employer Costs for Employee Compensation, Wages
account for 68.7% and Benefits account for 31.3%
of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/
ecec.nr0.htm.
61 The source of the data is based on average
World Bank wage rates for countries with USDAaccredited certifying agents, which are 70.3% of
U.S. labor rates. https://data.worldbank.org/
indicator/NY.GDP.PCAP.PP.CD.
62 The source of compensation rates is based on
an average of Organization for Economic CoOperation and Development (OECD) benefits
compensation rates at 34.63% of wage rates for
countries with USDA-accredited certifying agents.
https://stats.oecd.org/
Index.aspx?DataSetCode=AWCOMP.
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to be inspected annually; however, a
certifying agent may call for additional
inspections on an as-needed basis
(§ 205.403(a)).
Any individual who applies to
conduct inspections of organic livestock
and poultry operations will need to
submit information documenting their
qualifications to the certifying agent
(§ 205.504(a)(3)). Inspectors will need to
provide an inspection report to the
certifying agent for each operation
inspected (§ 205.403(e)). AMS projects
that inspectors will attend at least one
5-hour training to learn about inspecting
operations under the new requirements.
AMS estimates that inspectors will
spend two hours longer on average to
inspect an organic livestock or poultry
operation and prepare an inspection
report for the first time under these
proposed new requirements. Inspectors
do not have recordkeeping obligations;
certifying agents maintain the records of
inspection reports. AMS estimates the
average collection cost per inspector to
be $1,558. This estimate is based on an
average of 57 additional labor hours at
$30.70 per labor hour,63 including
31.7% benefits,64 and at $22.13 per
labor hour,65 including 34.63%
benefits,66 for domestic and foreign
inspectors, respectively, to receive
training, and to inspect and prepare
inspection reports under the new
requirements. These are one-time costs
that will become routine to maintain.
4. State organic programs. The state
organic program enforces the OFPA in
its state under the authority of USDA.
The California state organic program is
the only state organic program at this
63 National Compensation Survey: Occupational
Employment and Wages, May 2020, published by
the Bureau of Labor Statistics. Bureau of Labor
Statistics, Occupational Employment and Wages,
May 2021. The labor rate for inspectors is based on
Occupational Employment Statistics group 45–
2011, Agricultural Inspectors. Agricultural
inspectors inspect agricultural commodities,
processing equipment, facilities, and fish and
logging operations to ensure compliance with
regulations and laws governing health, quality, and
safety. https://www.bls.gov/oes/current/oes_
nat.htm.
64 Bureau of Labor Statistics News Release on
Employer Costs for Employee Compensation, Wages
account for 68.7% and Benefits account for 31.3%
of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/
ecec.nr0.htm.
65 The source of the data is based on average
World Bank wage rates for countries with USDAaccredited certifying agents, which are 70.3% of
U.S. labor rates. https://data.worldbank.org/
indicator/NY.GDP.PCAP.PP.CD.
66 The source of compensation rates is based on
an average of Organization for Economic CoOperation and Development (OECD) benefits
compensation rates at 34.63% of wage rates for
countries with USDA-accredited certifying agents.
https://stats.oecd.org/
Index.aspx?DataSetCode=AWCOMP.
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time. AMS estimates the collection cost
$148 at $47.73 per labor hour,67
including 31.7% benefits.68 This
estimate includes two hours to prepare
the relevant procedures and one hour to
store the records related to this
procedure. These are one-time costs that
will become routine to maintain.
Please find the total information
collection burden broken out as
reporting and recordkeeping costs that
are discussed in narrative and presented
in Tables 1 and 2 below.
Total All Reporting Burden Cost:
$3,537,460.
Estimate of Burden: Public reporting
burden for this collection of information
is estimated to average 2.64 hours per
response.
Respondents: Certified organic and
applicant livestock and poultry
operations, certifying agents, inspectors,
and state organic programs.
Estimated Number of Reporting
Respondents: 6,846.
Estimated Number of Reporting
Responses: 33,363.
Estimated Total Reporting Burden on
Respondents: 88,183 hours.
Estimated Total Reporting Responses
per Reporting Respondents: 5 reporting
responses per reporting respondents.
AMS estimates that the public
reporting burden for this information
collection is estimated to be 88,183
hours at a total cost of $3,537,460 with
a total number of 6,846 respondents.
Respondents are comprised of currently
certified operations, operations that will
seek certification over the next 12
months, USDA accredited certifying
agents, inspectors, and state organic
programs. The reporting burden of each
of the respondent categories are
explained below and can be viewed in
Table 1: Summary of Reporting Burden.
1. Organic Operations. There are
6,539 operations worldwide that are
either currently certified to the USDA
organic standards for livestock or
poultry production or will be seeking
67 National Compensation Survey: Occupational
Employment and Wages, May 2020, published by
the Bureau of Labor Statistics. Bureau of Labor
Statistics, Occupational Employment and Wages,
May 2021. 67 The labor rate for certification review
staff is based on Occupational Employment
Statistics group 13–1041, Compliance Officers.
Compliance officers examine, evaluate, and
investigate eligibility for or conformity with laws
and regulations governing contract compliance of
licenses and permits, and perform other compliance
and enforcement inspection and analysis activities
not classified elsewhere. https://www.bls.gov/oes/
current/oes_nat.htm.
68 Bureau of Labor Statistics News Release on
Employer Costs for Employee Compensation. Wages
account for 68.7% and Benefits account for 31.3%
of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/
ecec.nr0.htm.
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certification for livestock or poultry
production over the next 12 months.
Based on average growth of 5.9% in
livestock and poultry operations under
current rules,69 AMS expects to add 364
operations to the 6,174 operations
currently certified for livestock or
poultry production. AMS estimates that
the average reporting burden for all
domestic and foreign organic livestock
and poultry producers, including new
applicants is 39,229 hours at a total
estimated cost of $1,684,480.
AMS estimates that 3,858 operations
based in the United States, and 2,681
operations based in foreign countries,
including applicants for certification
under the current rules, will be
impacted. Average initial reporting
burden hours for both a domestic and a
foreign organic operation or applicant
for organic certification is 6 hours with
costs averaging $291 for a domestic
operation at $48.49 per labor hour,70
including 31.7% benefits,71 and $210
for a foreign operation at $34.95 per
labor hour,72 including 34.63%
benefits.73 Total reporting hours for
3,858 domestic operations is 23,145
hours at $48.49 per labor hour,74
including 31.7% benefits,75 and 16,084
hours for 2,681 foreign operations at
69 Organic Integrity Database: https://
organic.ams.usda.gov/integrity/.
70 National Compensation Survey: Occupational
Employment and Wage Estimates, May 2020,
published by the Bureau of Labor Statistics. 11–
9013 Farmers, Ranchers, and Other Agricultural
Managers. https://www.bls.gov/oes/current/oes_
nat.htm.
71 Bureau of Labor Statistics News Release on
Employer Costs for Employee Compensation, Wages
account for 68.7% and Benefits account for 31.3%
of total average employer compensation costs, June
18, 2020: https://www.bls.gov/news.release/
ecec.nr0.htm.
72 The source of the data is based on average
World Bank wage rates for countries with USDAaccredited certifying agents which were 70.3% of
U.S. labor rates in 2020. https://data.worldbank.org/
indicator/NY.GDP.PCAP.PP.CD.
73 The source of compensation rates is based on
an average of Organization for Economic CoOperation and Development (OECD) benefits
compensation rates at 34.63% of wage rates for
countries with USDA-accredited certifying agents.
https://stats.oecd.org/
Index.aspx?DataSetCode=AWCOMP.
74 National Compensation Survey: Occupational
Employment and Wage Estimates, May 2020,
published by the Bureau of Labor Statistics. 11–
9013 Farmers, Ranchers, and Other Agricultural
Managers. https://www.bls.gov/oes/current/oes_
nat.htm.
75 Bureau of Labor Statistics News Release on
Employer Costs for Employee Compensation, Wages
account for 68.7% and Benefits account for 31.3%
of total average employer compensation costs, June
18, 2020: https://www.bls.gov/news.release/
ecec.nr0.htm.
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48587
$34.95 per labor hour,76 including
34.63% benefits.77
2. Accredited Certifying Agents. There
are 57 certifying agents worldwide that
are USDA accredited under the
livestock scope to certify livestock or
poultry producers as organic. AMS
estimates that the average reporting
burden for all domestic and foreign
certifying agents accredited for the
scope of livestock is 34,625 hours at a
total estimated cost of $1,463,427.
Average initial reporting burden hours
for a domestic certifying agent is 601
hours with costs averaging $28,679 at
$47.73 per labor hour,78 including
31.7% benefits.79 Average initial
reporting burden hours for a foreign
certifying agent is 617 hours with costs
averaging $21, 232 at $34.40 per labor
hour,80 including 34.63% benefits.81
AMS estimates that the total reporting
burden of the 34 certifying agents based
in the United States is $1,122,302 which
is based on 20,429 hours at $47.73 per
labor hour,82 including 31.7%
76 The source of the data is based on average
World Bank wage rates for countries with USDAaccredited certifying agents which were 70.3% of
U.S. labor rates in 2020. https://data.worldbank.org/
indicator/NY.GDP.PCAP.PP.CD.
77 The source of compensation rates is based on
an average of Organization for Economic CoOperation and Development (OECD) benefits
compensation rates at 34.63% of wage rates for
countries with USDA-accredited certifying agents.
https://stats.oecd.org/
Index.aspx?DataSetCode=AWCOMP.
78 National Compensation Survey: Occupational
Employment and Wages, May 2020, published by
the Bureau of Labor Statistics. Bureau of Labor
Statistics, Occupational Employment and Wages,
May 2021, 78 The labor rate for certification review
staff is based on Occupational Employment
Statistics group 13–1041, Compliance Officers.
Compliance officers examine, evaluate, and
investigate eligibility for or conformity with laws
and regulations governing contract compliance of
licenses and permits, and perform other compliance
and enforcement inspection and analysis activities
not classified elsewhere. https://www.bls.gov/oes/
current/oes_nat.htm.
79 Bureau of Labor Statistics News Release on
Employer Costs for Employee Compensation, Wages
account for 68.7% and Benefits account for 31.3%
of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/
ecec.nr0.htm.
80 The source of the data is based on average
World Bank wage rates for countries with USDAaccredited certifying agents which are 70.3% of
U.S. labor rates. https://data.worldbank.org/
indicator/NY.GDP.PCAP.PP.CD.
81 The source of compensation rates is based on
an average of Organization for Economic CoOperation and Development (OECD) benefits
compensation rates at 34.63% of wage rates for
countries with USDA-accredited certifying agents.
https://stats.oecd.org/
Index.aspx?DataSetCode=AWCOMP.
82 National Compensation Survey: Occupational
Employment and Wages, May 2020, published by
the Bureau of Labor Statistics. Bureau of Labor
Statistics, Occupational Employment and Wages,
May 2021, 82 The labor rate for certification review
staff is based on Occupational Employment
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benefits.83 The reporting burden of the
23 certifying agents based in foreign
countries is $488,404 based on 14,196 at
$34.40 per labor hour,84 including
34.63% benefits.85
3. Inspectors. AMS estimates that the
reporting burden for the 250 domestic
and foreign inspectors inspecting
livestock and poultry operations
worldwide is 14,327 hours at a total
estimated cost of $389,456. Average
initial reporting burden hours for a
domestic inspectors is 57 hours at
$30.70 per labor hour,86 including
31.7% benefits 87 and average reporting
burden for foreign inspectors calculates
at 58 hours at $22.13 per labor hour,88
including 34.63% benefits.89 AMS
estimates the reporting burden of the
148 US based inspectors is $259,479
which is based on 8,453 hours at $30.70
per labor hour,90 including 31.7%
benefits.91 The reporting burden of the
103 inspectors based in foreign
countries is estimated at $129,977 based
on 5,874 at $22.13 per labor hour,92
including 34.63% benefits.93
TABLE 1—SUMMARY OF REPORTING BURDEN
USDA certified operations reporting burden
Number of
respondents
Total reporting
hours
Average
hours/
respondent
Wage +
benefits
Average
respondent
costs
Total reporting
costs
USDA Certified Operations Reporting Burden
USDA Certified Producers & Handlers—
New & Existing Domestic .....................
USDA Certified Producers & Handlers—
New & Existing Foreign ........................
USDA Certified Operations—All .......
3,858
23,145
6
$48.49
$291
$1,122,30
2,681
16,084
6
34.95
210
562,18
6,539
39,229
........................
........................
........................
1,684,48
USDA Accredited Certifiers Reporting Burden
US Accredited US-Based Certifiers .........
US Accredited Foreign-Based Certifiers ..
34
23
20,429
14,196
601
617
47.73
34.40
28,679
21,232
975,02
488,40
US Certifiers—All ..............................
57
34,625
........................
........................
........................
1,463,427
Inspectors Reporting Burden
US Based Inspectors ...............................
Foreign Based Inspectors ........................
148
102
8,453
5,874
57
58
30.70
22.13
1,753
1,274
259,48
129,98
Inspectors—All ..................................
250
14,327
........................
........................
........................
389,456
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State Organic Programs Reporting Burden
State Organic Programs ..........................
1
2
2
47.73
95.46
95
SOP—All ...........................................
1
2
........................
........................
........................
95
Total Reporting Burden—All Respondents ...............................
6,846
88,183
........................
........................
........................
3,537,460
Statistics group 13–1041, Compliance Officers.
Compliance officers examine, evaluate, and
investigate eligibility for or conformity with laws
and regulations governing contract compliance of
licenses and permits, and perform other compliance
and enforcement inspection and analysis activities
not classified elsewhere. https://www.bls.gov/oes/
current/oes_nat.htm.
83 Bureau of Labor Statistics News Release on
Employer Costs for Employee Compensation, Wages
account for 68.7% and Benefits account for 31.3%
of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/
ecec.nr0.htm.
84 The source of the data is based on average
World Bank wage rates for countries with USDAaccredited certifying agents which are 70.3% of
U.S. labor rates. https://data.worldbank.org/
indicator/NY.GDP.PCAP.PP.CD.
85 The source of compensation rates is based on
an average of Organization for Economic CoOperation and Development (OECD) benefits
compensation rates at 34.63% of wage rates for
countries with USDA-accredited certifying agents.
https://stats.oecd.org/
Index.aspx?DataSetCode=AWCOMP.
86 National Compensation Survey: Occupational
Employment and Wages, May 2020, published by
the Bureau of Labor Statistics. Bureau of Labor
Statistics, Occupational Employment and Wages,
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May 2021, The labor rate for inspectors is based on
Occupational Employment Statistics group 45–
2011, Agricultural Inspectors. Agricultural
inspectors inspect agricultural commodities,
processing equipment, facilities, and fish and
logging operations to ensure compliance with
regulations and laws governing health, quality, and
safety. https://www.bls.gov/oes/current/oes_
nat.htm.
87 Bureau of Labor Statistics News Release on
Employer Costs for Employee Compensation, Wages
account for 68.7% and Benefits account for 31.3%
of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/
ecec.nr0.htm.
88 The source of the data is based on average
World Bank wage rates for countries with USDAaccredited certifying agents which are 70.3% of
U.S. labor rates. https://data.worldbank.org/
indicator/NY.GDP.PCAP.PP.CD.
89 The source of compensation rates is based on
an average of Organization for Economic CoOperation and Development (OECD) benefits
compensation rates at 34.63% of wage rates for
countries with USDA-accredited certifying agents.
https://stats.oecd.org/
Index.aspx?DataSetCode=AWCOMP.
90 National Compensation Survey: Occupational
Employment and Wages, May 2020, published by
the Bureau of Labor Statistics. Bureau of Labor
PO 00000
Frm 00028
Fmt 4701
Sfmt 4702
Statistics, Occupational Employment and Wages,
May 2021, The labor rate for inspectors is based on
Occupational Employment Statistics group 45–
2011, Agricultural Inspectors. Agricultural
inspectors inspect agricultural commodities,
processing equipment, facilities, and fish and
logging operations to ensure compliance with
regulations and laws governing health, quality, and
safety. https://www.bls.gov/oes/current/oes_
nat.htm.
91 Bureau of Labor Statistics News Release on
Employer Costs for Employee Compensation, Wages
account for 68.7% and Benefits account for 31.3%
of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/
ecec.nr0.htm.
92 The source of the data is based on average
World Bank wage rates for countries with USDAaccredited certifying agents which are 70.3% of
U.S. labor rates. https://data.worldbank.org/
indicator/NY.GDP.PCAP.PP.CD.
93 The source of compensation rates is based on
an average of Organization for Economic CoOperation and Development (OECD) benefits
compensation rates at 34.63% of wage rates for
countries with USDA-accredited certifying agents.
https://stats.oecd.org/
Index.aspx?DataSetCode=AWCOMP.
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4. State Organic Programs. AMS
estimates 2 reporting hours for the
California State Organic Program at
$43.73 per labor hour,94 including
31.7% benefits 95 costing $95 annually.
Total All Recordkeeping Burden Cost:
$600,937.
Estimate of Burden: Public
recordkeeping burden for this collection
of information is estimated to average
1.9 hours per response.
Respondents: Certified operations,
exempt operations, certifying agents,
and state organic programs.
Estimated Number of Recordkeeping
Respondents: 7,309.
Estimated Total Recordkeeping
Burden on Respondents: 13,905 hours.
Estimated Total Recordkeeping
Responses per Recordkeeping
Respondents: 1.
AMS estimates that the public
recordkeeping burden for this
information collection is estimated to be
13,905 hours per year at a cost of
$600,937 with a total number of 7,309
respondents. Respondents are
comprised of currently certified
livestock and poultry operations,
operations that will seek certification
over the next 12 months, exempt
livestock and poultry operations, USDA
accredited certifying agents, and state
organic programs. The recordkeeping
burden of each of the respondent
categories are explained below and can
be viewed in Table 2: Summary of
Recordkeeping Burden.
1. Organic Operations. AMS estimates
there are 7,252 operations worldwide
that are impacted by the new
requirements for recordkeeping for
organic livestock and poultry. There are
6,539 domestic and foreign operations
that are either currently certified to the
USDA organic standards for livestock or
poultry production or will be seeking
certification for livestock or poultry
production over the next 12 months that
are subject to these requirements. In
addition, 713 livestock and poultry
94 National Compensation Survey: Occupational
Employment and Wages, May 2020, published by
the Bureau of Labor Statistics. Bureau of Labor
Statistics, Occupational Employment and Wages,
May 2021. 94 The labor rate for certification review
staff is based on Occupational Employment
Statistics group 13–1041, Compliance Officers.
Compliance officers examine, evaluate, and
investigate eligibility for or conformity with laws
and regulations governing contract compliance of
licenses and permits, and perform other compliance
and enforcement inspection and analysis activities
not classified elsewhere. https://www.bls.gov/oes/
current/oeslnat.htm.
95Bureau of Labor Statistics News Release on
Employer Costs for Employee Compensation, Wages
account for 68.7% and Benefits account for 31.3%
of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/
ecec.nr0.htm.
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18:29 Aug 08, 2022
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operations that claim organic status in
direct to consumer sales but are exempt
from organic certification because they
sell $5,000 or less of organically
managed animal products must
maintain records to support their claim
in the event of a complaint.96
AMS estimates that the total
recordkeeping burden for all 7,252
domestic and foreign organic livestock
and poultry producers, including new
applicants and exempt operations is
13,076 hours at a total estimated cost of
$596,071. Average recordkeeping
burden hours for either a domestic or a
foreign certified organic operation, or an
applicant for organic certification is 2
hours with costs averaging $97 for a
domestic operation at $48.49 per labor
hour,97 including 31.7% benefits,98 and
$70 for a foreign operation at $34.95 per
labor hour,99 including 34.63%
benefits.100 The cost of the average
recordkeeping burden of the 713
domestic livestock and poultry
operations that are exempt from
certification 101 is $48 for one hour at
$48.49 per labor hour,102 including
31.7% benefits.103 Total recordkeeping
burden for all 4,571 domestic livestock
and poultry operations is 8,428 hours at
a total estimated cost of $408,678 at
96 USDA National Ag Statistics Service, Census of
Agriculture, 2019 Organic Survey: https://
www.nass.usda.gov/Publications/AgCensus/2017/
Online_Resources/Organics/.
97 National Compensation Survey: Occupational
Employment and Wage Estimates, May 2020,
published by the Bureau of Labor Statistics. 11–
9013 Farmers, Ranchers, and Other Agricultural
Managers. https://www.bls.gov/oes/current/oes_
nat.htm.
98 Bureau of Labor Statistics News Release on
Employer Costs for Employee Compensation, Wages
account for 68.7% and Benefits account for 31.3%
of total average employer compensation costs, June
18, 2020: https://www.bls.gov/news.release/
ecec.nr0.htm.
99 The source of the data is based on average
World Bank wage rates for countries with USDAaccredited certifying agents which were 70.3% of
U.S. labor rates in 2020. https://data.worldbank.org/
indicator/NY.GDP.PCAP.PP.CD.
100 The source of compensation rates is based on
an average of Organization for Economic CoOperation and Development (OECD) benefits
compensation rates at 34.63% of wage rates for
countries with USDA-accredited certifying agents.
https://stats.oecd.org/
Index.aspx?DataSetCode=AWCOMP.
101 USDA National Ag Statistics Service, Census
of Agriculture, 2019 Organic Survey: https://
www.nass.usda.gov/Publications/AgCensus/2017/
Online_Resources/Organics/.
102 National Compensation Survey: Occupational
Employment and Wage Estimates, May 2020,
published by the Bureau of Labor Statistics. 11–
9013 Farmers, Ranchers, and Other Agricultural
Managers. https://www.bls.gov/oes/current/oes_
nat.htm.
103 Bureau of Labor Statistics News Release on
Employer Costs for Employee Compensation, Wages
account for 68.7% and Benefits account for 31.3%
of total average employer compensation costs, June
18, 2020: https://www.bls.gov/news.release/
ecec.nr0.htm.
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$48.49 per labor hour,104 including
31.7% benefits,105 and 5,361 hours at a
total estimated costs of $187,393 for
2,681 foreign operations at $34.95 per
labor hour,106 including 34.63%
benefits.107
2. Accredited Certifying Agents. There
are 57 certifying agents worldwide that
are USDA accredited under the
livestock scope to certify livestock or
poultry producers as organic. AMS
estimates that the average annual
recordkeeping burden for all domestic
and foreign certifying agents accredited
for the scope of livestock is 115 hours
at a total estimated cost of $4,818. AMS
estimates the recordkeeping burden of
the 34 certifying agents based in the
United States as $3,210 which is based
on 68 hours at $47.73 per labor hour,108
including 31.7% benefits.109 The
recordkeeping burden of the 23
certifying agents based in foreign
countries is $1,680 based on 47 hours at
$34.40 per labor hour,110 including
34.63% benefits.111 Average initial
104 National Compensation Survey: Occupational
Employment and Wage Estimates, May 2020,
published by the Bureau of Labor Statistics. 11–
9013 Farmers, Ranchers, and Other Agricultural
Managers. https://www.bls.gov/oes/current/oes_
nat.htm.
105 Bureau of Labor Statistics News Release on
Employer Costs for Employee Compensation, Wages
account for 68.7% and Benefits account for 31.3%
of total average employer compensation costs, June
18, 2020: https://www.bls.gov/news.release/
ecec.nr0.htm.
106 The source of the data is based on average
World Bank wage rates for countries with USDAaccredited certifying agents which were 70.3% of
U.S. labor rates in 2020. https://data.worldbank.org/
indicator/NY.GDP.PCAP.PP.CD.
107 The source of compensation rates is based on
an average of Organization for Economic CoOperation and Development (OECD) benefits
compensation rates at 34.63% of wage rates for
countries with USDA-accredited certifying agents.
https://stats.oecd.org/
Index.aspx?DataSetCode=AWCOMP.
108 National Compensation Survey: Occupational
Employment and Wages, May 2020, published by
the Bureau of Labor Statistics. Bureau of Labor
Statistics, Occupational Employment and Wages,
May 2021, 1 The labor rate for certification review
staff is based on Occupational Employment
Statistics group 13–1041, Compliance Officers.
Compliance officers examine, evaluate, and
investigate eligibility for or conformity with laws
and regulations governing contract compliance of
licenses and permits, and perform other compliance
and enforcement inspection and analysis activities
not classified elsewhere. https://www.bls.gov/oes/
current/oes_nat.htm.
109 Bureau of Labor Statistics News Release on
Employer Costs for Employee Compensation, Wages
account for 68.7% and Benefits account for 31.3%
of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/
ecec.nr0.htm.
110 The source of the data is based on average
World Bank wage rates for countries with USDAaccredited certifying agents which are 70.3% of
U.S. labor rates. https://data.worldbank.org/
indicator/NY.GDP.PCAP.PP.CD.
111 The source of compensation rates is based on
an average of Organization for Economic Co-
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recordkeeping burden hours is 2 hours
for both domestic and foreign based
certifying agents calculated at $95 for
domestic certifying agents at $47.73 per
labor hour,112 including 31.7%
benefits,113 and $70 for foreign
certifying agents at $34.40 per labor
hour,114 including 34.63% benefits.115
3. State Organic Programs. AMS
estimates 1 hour of recordkeeping for
the California State Organic Program at
$47.73 per labor hour,116 including
31.7% benefits 117 costing $48.
TABLE 2—SUMMARY OF RECORDKEEPING BURDEN
Total
recordkeeping
hours
Number of
respondents
USDA Certified Producers & Handlers—
New & Existing Domestic .....................
USDA Certified Producers & Handlers—
New & Existing Foreign ........................
Exempt Producers ((11.5% of current
total certified that are exempt from organic certification)) ...............................
USDA Certified Producers & Handlers—New & Existing—All ...........
Average
hours/
respondent
Wage +
benefits
Average
respondent
costs
Total recordkeeping costs
3,858
7,715
2
$48.49
$97
$374,101
2,681
5,361
2
34.95
70
187,393
713
713
1
48.49
48
34,577
7,252
13,789
........................
........................
........................
596,071
USDA Accredited Certifiers Recordkeeping Burden
US Accredited US-Based Certifiers .........
US Accredited Foreign-Based Certifiers ..
34
23
68
47
2
2
47.73
34.40
95
70
3,210
1,608
US Certifiers—All ..............................
57
115
........................
........................
........................
4,818
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State Organic Programs Recordkeeping Burden
State Organic Programs ..........................
SOP—All ...........................................
1
1
1
1.00
1
........................
47.73
........................
48
........................
48
48
Total Recordkeeping Burden—All
Respondents .................................
7,309
13,905
........................
........................
........................
600,937
AMS is inviting comments from all
interested parties concerning the
information collection and
recordkeeping required as a result of the
proposed amendments to 7 CFR part
205. AMS seeks comment on the
following subjects:
(1) Whether the proposed collection
of information is necessary for the
proper performance of the functions of
the agency, including whether the
information would have practical
utility.
(2) The accuracy of the agency’s
estimate of the burden of the proposed
collection of information, including the
validity of the methodology and
assumptions used.
(3) Ways to enhance the quality,
utility, and clarity of the information to
be collected.
(4) Ways to minimize the burden of
the collection of information on those
who are to respond, including the use
of appropriate automated, electronic,
mechanical, or other technological
collection techniques or other forms of
information technology.
(5) AMS estimates that the total
number of certified organic operations
Operation and Development (OECD) benefits
compensation rates at 34.63% of wage rates for
countries with USDA-accredited certifying agents.
https://stats.oecd.org/
Index.aspx?DataSetCode=AWCOMP.
112 National Compensation Survey: Occupational
Employment and Wages, May 2020, published by
the Bureau of Labor Statistics. Bureau of Labor
Statistics, Occupational Employment and Wages,
May 2021, 112 The labor rate for certification review
staff is based on Occupational Employment
Statistics group 13–1041, Compliance Officers.
Compliance officers examine, evaluate, and
investigate eligibility for or conformity with laws
and regulations governing contract compliance of
licenses and permits, and perform other compliance
and enforcement inspection and analysis activities
not classified elsewhere. https://www.bls.gov/oes/
current/oes_nat.htm.
113 Bureau of Labor Statistics News Release on
Employer Costs for Employee Compensation, Wages
account for 68.7% and Benefits account for 31.3%
of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/
ecec.nr0.htm.
114 The source of the data is based on average
World Bank wage rates for countries with USDAaccredited certifying agents which are 70.3% of
U.S. labor rates. https://data.worldbank.org/
indicator/NY.GDP.PCAP.PP.CD.
115 The source of compensation rates is based on
an average of Organization for Economic CoOperation and Development (OECD) benefits
compensation rates at 34.63% of wage rates for
countries with USDA-accredited certifying agents.
https://stats.oecd.org/
Index.aspx?DataSetCode=AWCOMP.
116 National Compensation Survey: Occupational
Employment and Wages, May 2020, published by
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will grow by 5.6% annually, based on
the increase in operations recorded in
INTEGRITY during the last 12 months.
Is this a reasonable and accurate
projection of future growth, given the
additional burdens imposed by this
proposed rulemaking? 118
IX. Civil Rights Impact Analysis
AMS has reviewed this proposed rule
in accordance with the Department
Regulation 4300–4, Civil Rights Impact
Analysis (CRIA), to address any major
civil rights impacts the rule might have
on minorities, women, and persons with
the Bureau of Labor Statistics. Bureau of Labor
Statistics, Occupational Employment and Wages,
May 2021, 116 The labor rate for certification review
staff is based on Occupational Employment
Statistics group 13–1041, Compliance Officers.
Compliance officers examine, evaluate, and
investigate eligibility for or conformity with laws
and regulations governing contract compliance of
licenses and permits, and perform other compliance
and enforcement inspection and analysis activities
not classified elsewhere. https://www.bls.gov/oes/
current/oes_nat.htm.
117 Bureau of Labor Statistics News Release on
Employer Costs for Employee Compensation, Wages
account for 68.7% and Benefits account for 31.3%
of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/
ecec.nr0.htm.
118 Organic Integrity Database: https://
organic.ams.usda.gov/integrity/.
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disabilities. After a careful review of the
rule’s intent and provisions, AMS
determined that this rule would only
impact the organic practices of organic
producers and that this rule has no
potential for affecting producers in
protected groups differently than the
general population of producers. This
rulemaking was initiated to clarify a
regulatory requirement and enable
consistent implementation and
enforcement.
Protected individuals have the same
opportunity to participate in the NOP as
non-protected individuals. The USDA
organic regulations prohibit
discrimination by certifying agents.
Specifically, § 205.501(d) of the current
regulations for accreditation of
certifying agents provides that ‘‘No
private or governmental entity
accredited as a certifying agent under
this subpart shall exclude from
participation in or deny the benefits of
the National Organic Program to any
person due to discrimination because of
race, color, national origin, gender,
religion, age, disability, political beliefs,
sexual orientation, or marital or family
status.’’ Section 205.501(a)(2) requires
‘‘certifying agents to demonstrate the
ability to fully comply with the
requirements for accreditation set forth
in this subpart’’ including the
prohibition on discrimination. The
granting of accreditation to certifying
agents under § 205.506 requires the
review of information submitted by the
certifying agent and an on-site review of
the certifying agent’s client operation.
Further, if certification is denied,
§ 205.405(d) requires that the certifying
agent notify the applicant of their right
to file an appeal to the AMS
Administrator in accordance with
§ 205.681.
These regulations provide protections
against discrimination, thereby
permitting all producers, regardless of
race, color, national origin, gender,
religion, age, disability, political beliefs,
sexual orientation, or marital or family
status, who voluntarily choose to adhere
to the rule and qualify, to be certified as
meeting NOP requirements by an
accredited certifying agent. This action
in no way changes any of these
protections against discrimination.
jspears on DSK121TN23PROD with PROPOSALS2
List of Subjects in 7 CFR Part 205
Administrative practice and
procedure, Agricultural commodities,
Agriculture, Animals, Archives and
records, Fees, Imports, Labeling,
Livestock, Organically produced
products, Plants, Reporting and
recordkeeping requirements, Seals and
insignia, Soil conservation.
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For the reasons stated in the
preamble, AMS proposes to amend 7
CFR part 205 as set forth below:
PART 205—NATIONAL ORGANIC
PROGRAM
1. The authority citation for part 205
continues to read as follows:
■
Authority: 7 U.S.C. 6501–6524.
2. Amend § 205.2 by adding
definitions for ‘‘Beak trimming’’,
‘‘Caponization’’, ‘‘Cattle wattling’’, ‘‘Debeaking’’, ‘‘De-snooding’’, ‘‘Dubbing’’,
‘‘Indoors or indoor space’’, ‘‘Mulesing’’,
‘‘Non-ambulatory’’, ‘‘Outdoors or
outdoor space’’, ‘‘Perch’’, ‘‘Pullets’’,
‘‘Religious slaughter’’, ‘‘Soil’’, ‘‘Stocking
density’’, ‘‘Toe clipping’’, and
‘‘Vegetation’’ in alphabetical order to
read as follows:
■
§ 205.2
Terms defined.
*
*
*
*
*
Beak trimming. The removal of not
more than one-quarter to one-third of
the upper beak or the removal of onequarter to one-third of both the upper
and lower beaks of a bird in order to
control injurious pecking and
cannibalism.
*
*
*
*
*
Caponization. Castration of chickens,
turkeys, pheasants, and other avian
species.
Cattle wattling. The surgical
separation of two layers of the skin from
the connective tissue for along a 2-to-4inch path on the dewlap, neck, or
shoulders used for ownership
identification.
*
*
*
*
*
De-beaking. The removal of more than
one-third of the upper beak or removal
of more than one-third of both the upper
and lower beaks of a bird.
De-snooding. The removal of the
turkey snood (a fleshy protuberance on
the forehead of male turkeys).
*
*
*
*
*
Dubbing. The removal of poultry
combs and wattles.
*
*
*
*
*
Indoors or indoor space. The space
inside of an enclosed building or
housing structure available to livestock.
Indoor space for avian species includes,
but is not limited to:
(1) Mobile housing. A mobile
structure for avian species with solid or
perforated flooring that is moved
regularly during the grazing season.
(2) Aviary housing. A fixed structure
for avian species that has multiple tiers
or levels.
(3) Slatted/mesh floor housing. A
fixed structure for avian species that has
both:
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48591
(i) A slatted floor where perches, feed,
and water are provided over a pit or belt
for manure collection; and
(ii) Litter covering the remaining solid
floor.
(4) Floor litter housing. A fixed
structure for avian species that has
absorbent litter covering the entire floor.
*
*
*
*
*
Mulesing. The removal of skin from
the buttocks of sheep, approximately 2
to 4 inches wide and running away from
the anus to the hock to prevent fly
strike.
*
*
*
*
*
Non-ambulatory. As defined in 9 CFR
309.2(b).
*
*
*
*
*
Outdoors or outdoor space. Any area
outside an enclosed building or
enclosed housing structure, including
roofed areas that are not enclosed.
Outdoor space for avian species
includes, but is not limited to:
(1) Pasture pens. Floorless pens, with
full or partial roofing, that are moved
regularly and provide direct access to
soil and vegetation.
(2) [Reserved]
*
*
*
*
*
Perch. A rod or branch type structure
above the floor of the house that
accommodates roosting, allowing birds
to utilize vertical space in the house.
*
*
*
*
*
Pullets. Female chickens or other
avian species being raised for egg
production that have not yet started to
lay eggs.
*
*
*
*
*
Ritual slaughter. Slaughtering in
accordance with the ritual requirements
of any other religious faith that
prescribes a method of slaughter
whereby the animal suffers loss of
consciousness by anemia of the brain
caused by the simultaneous and
instantaneous severance of the carotid
arteries with a sharp instrument and
handling in connection with such
slaughtering.
*
*
*
*
*
Soil. The outermost layer of the earth
comprised of minerals, water, air,
organic matter, fungi, and bacteria in
which plants may grow roots.
*
*
*
*
*
Stocking density. The weight of
animals on a given area or unit of land.
*
*
*
*
*
Toe clipping. The removal of the nail
and distal joint of the back two toes of
a bird.
*
*
*
*
*
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Vegetation. Living plant matter that is
anchored in the soil by roots and
provides ground cover.
*
*
*
*
*
■ 3. Revise § 205.238 to read as follows:
jspears on DSK121TN23PROD with PROPOSALS2
§ 205.238 Livestock care and production
practices standard.
(a) Preventive health care practices.
The producer must establish and
maintain preventive health care
practices, including:
(1) Selection of species and types of
livestock with regard to suitability for
site-specific conditions and resistance to
prevalent diseases and parasites.
(2) Provision of a feed ration sufficient
to meet nutritional requirements,
including vitamins, minerals, proteins
and/or amino acids, fatty acids, energy
sources, and fiber (ruminants), resulting
in appropriate body condition.
(3) Establishment of appropriate
housing, pasture conditions, and
sanitation practices to minimize the
occurrence and spread of diseases and
parasites.
(4) Provision of conditions which
allow for exercise, freedom of
movement, and reduction of stress
appropriate to the species.
(5) Physical alterations may be
performed to benefit the welfare of the
animals, for identification purposes, or
for safety purposes. Physical alterations
must be performed on livestock at a
reasonably young age, with minimal
stress and pain and by a competent
person.
(i) The following practice may not be
routinely used and must be used only
with documentation that alternative
methods to prevent harm failed: needle
teeth clipping (no more than top onethird of the tooth) in pigs and tail
docking in pigs.
(ii) The following practices are
prohibited: de-beaking, de-snooding,
caponization, dubbing, toe clipping of
chickens, toe clipping of turkeys unless
with infra-red at hatchery, beak
trimming after 10 days of age, tail
docking of cattle, wattling of cattle, face
branding of cattle, tail docking of sheep
shorter than the distal end of the caudal
fold, and mulesing of sheep.
(6) Administration of vaccines and
other veterinary biologics.
(7) All surgical procedures necessary
to treat an illness shall be undertaken in
a manner that employs best
management practices in order to
minimize pain, stress, and suffering,
with the use of appropriate and allowed
anesthetics, analgesics, and sedatives.
(8) Monitoring of lameness and
keeping records of the percent of the
herd or flock suffering from lameness
and the causes.
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(b) Preventive medicines and
parasiticides. Producers may administer
medications that are allowed under
§ 205.603 to alleviate pain or suffering,
and when preventive practices and
veterinary biologics are inadequate to
prevent sickness. Parasiticides allowed
under § 205.603 may be used on:
(1) Breeder stock, when used prior to
the last third of gestation but not during
lactation for progeny that are to be sold,
labeled, or represented as organically
produced; and
(2) Dairy stock, when used a
minimum of 90 days prior to the
production of milk or milk products that
are to be sold, labeled, or represented as
organic.
(c) Prohibited practices. An organic
livestock operation must not:
(1) Sell, label, or represent as organic
any animal or product derived from any
animal treated with antibiotics, any
substance that contains a synthetic
substance not allowed under § 205.603,
or any substance that contains a nonsynthetic substance prohibited in
§ 205.604. Milk from animals
undergoing treatment with synthetic
substances allowed under § 205.603
cannot be sold as organic but may be fed
to calves on the same operation. Milk
from animals undergoing treatment with
prohibited substances cannot be sold as
organic or fed to organic livestock.
(2) Administer synthetic medications
unless:
(i) In the presence of illness or to
alleviate pain and suffering, and
(ii) That such medications are allowed
under § 205.603.
(3) Administer hormones for growth
promotion, production, or reproduction,
except as provided in § 205.603.
(4) Administer synthetic parasiticides
on a routine basis.
(5) Administer synthetic parasiticides
to slaughter stock.
(6) Administer animal drugs in
violation of the Federal Food, Drug, and
Cosmetic Act; or
(7) Withhold medical treatment from
a sick animal in an effort to preserve its
organic status. All appropriate
medications must be used to restore an
animal to health when methods
acceptable to organic production fail.
Livestock treated with a prohibited
substance must be clearly identified and
neither the animal nor its products shall
be sold, labeled, or represented as
organically produced.
(8) Withhold individual treatment
designed to minimize pain and suffering
for injured, diseased, or sick animals,
which may include forms of euthanasia
as recommended by the American
Veterinary Medical Association.
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(9) Neglect to identify and record
treatment of sick and injured animals in
animal health records.
(10) Practice forced molting or
withdrawal of feed to induce molting.
(d) Parasite control plans.
(1) Organic livestock operations must
have comprehensive plans to minimize
internal parasite problems in livestock.
The plan will include preventive
measures such as pasture management,
fecal monitoring, and emergency
measures in the event of a parasite
outbreak. Parasite control plans shall be
approved by the certifying agent.
(2) [Reserved]
(e) Euthanasia.
(1) Organic livestock operations must
have written plans for prompt, humane
euthanasia for sick or injured livestock.
(2) The following methods of
euthanasia are not permitted:
suffocation; manual blow to the head by
blunt instrument or manual blunt force
trauma; and the use of equipment that
crushes the neck, including killing
pliers or Burdizzo clamps.
(3) Following a euthanasia procedure,
livestock must be carefully examined to
ensure that they are dead.
■ 4. Revise § 205.239 to read as follows:
§ 205.239 Mammalian livestock living
conditions.
(a) The producer of an organic
livestock operation must establish and
maintain year-round livestock living
conditions, which accommodate the
wellbeing and natural behavior of
animals, including:
(1) Year-round access for all animals
to the outdoors, shade, shelter, exercise
areas, fresh air, clean water for drinking,
and direct sunlight, suitable to the
species, its stage of life, the climate, and
the environment: Except, that, animals
may be temporarily denied access to the
outdoors in accordance with paragraphs
(b) and (c) of this section. Yards, feeding
pads, and feedlots may be used to
provide ruminants with access to the
outdoors during the non-grazing season
and supplemental feeding during the
grazing season. Yards, feeding pads, and
feedlots shall be large enough to allow
all ruminant livestock occupying the
yard, feeding pad, or feedlot to feed
without competition for food.
Continuous total confinement of any
animal indoors is prohibited.
Continuous total confinement of
ruminants in yards, feeding pads, and
feedlots is prohibited.
(2) For all ruminants, management on
pasture and daily grazing throughout
the grazing season(s) to meet the
requirements of § 205.237, except as
provided for in paragraphs (b), (c), and
(d) of this section.
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(3) Appropriate clean, dry bedding.
When roughages are used as bedding,
they shall have been organically
produced in accordance with this part
by an operation certified under this part,
except as provided in § 205.236(a)(2)(i),
and, if applicable, organically handled
by operations certified to the NOP.
(4) Shelter designed to allow for:
(i) Over a 24-hour period, sufficient
space and freedom to lie down, turn
around, stand up, fully stretch their
limbs, and express normal patterns of
behavior;
(ii) Temperature level, ventilation,
and air circulation suitable to the
species;
(iii) Reduction of potential for
livestock injury; and
(iv) If indoor housing is provided,
areas for bedding and resting that are
sufficiently large, solidly built, and
comfortable so that animals are kept
clean, dry, and free of lesions.
(5) The use of yards, feeding pads,
feedlots and laneways that shall be welldrained, kept in good condition
(including frequent removal of wastes),
and managed to prevent runoff of wastes
and contaminated waters to adjoining or
nearby surface water and across
property boundaries.
(6) Housing, pens, runs, equipment,
and utensils shall be properly cleaned
and disinfected as needed to prevent
cross-infection and build-up of diseasecarrying organisms.
(7) Dairy young stock may be housed
in individual pens until completion of
the weaning process but no later than 6
months of age, provided that they have
enough room to turn around, lie down,
stretch out when lying down, get up,
rest, and groom themselves; individual
animal pens shall be designed and
located so that each animal can see,
smell, and hear other calves.
(8) Swine must be housed in a group,
except:
(i) Sows may be housed individually
at farrowing and during the suckling
period;
(ii) Boars; and
(iii) Swine with documented instance
of aggression or recovery from an
illness.
(9) Piglets shall not be kept on flat
decks or in piglet cages.
(10) For swine, rooting materials must
be provided, except during the
farrowing and suckling period.
(11) In confined housing with stalls
for mammalian livestock, enough stalls
must be present to provide for the
natural behaviors of the animals. A cage
must not be called a stall. For grouphoused swine, the number of individual
feeding stalls may be less than the
number of animals, as long as all
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animals are fed routinely over a 24-hour
period. For group-housed cattle, bedded
packs, compost packs, tie-stalls, freestalls, and stanchion barns are all
acceptable housing as part of an overall
organic system plan.
(12) Outdoor space must be provided
year-round. When the outdoor space
includes soil, maximal vegetative cover
must be maintained as appropriate for
the season, climate, geography, species
of livestock, and stage of production.
(b) The producer of an organic
livestock operation may provide
temporary confinement or shelter for an
animal because of:
(1) Inclement weather;
(2) The animal’s stage of life,
however, lactation is not a stage of life
that would exempt ruminants from any
of the mandates set forth in this part;
(3) Conditions under which the
health, safety, or well-being of the
animal could be jeopardized;
(4) Risk to soil or water quality;
(5) Preventive healthcare procedures
or for the treatment of illness or injury
(neither the various life stages nor
lactation is an illness or injury);
(6) Sorting or shipping animals and
livestock sales, provided that the
animals shall be maintained under
continuous organic management,
including organic feed, throughout the
extent of their allowed confinement;
(7) Breeding: Except, that, animals
shall not be confined any longer than
necessary to perform the natural or
artificial insemination. Animals may not
be confined to observe estrus; and
(8) 4–H, National FFA Organization,
and other youth projects, for no more
than one week prior to a fair or other
demonstration, through the event, and
up to 24 hours after the animals have
arrived home at the conclusion of the
event. These animals must have been
maintained under continuous organic
management, including organic feed,
during the extent of their allowed
confinement for the event.
Notwithstanding the requirements in
paragraph (b)(6) of this section, facilities
where 4–H, National FFA Organization,
and other youth events are held are not
required to be certified organic for the
participating animals to be sold as
organic, provided all other organic
management practices are followed.
(c) The producer of an organic
livestock operation may, in addition to
the times permitted under paragraph (b)
of this section, temporarily deny a
ruminant animal pasture or outdoor
access under the following conditions:
(1) One week at the end of a lactation
for dry off (for denial of access to
pasture only), three weeks prior to
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48593
parturition (birthing), parturition, and
up to one week after parturition;
(2) In the case of newborn dairy cattle
for up to six months, after which they
must be on pasture during the grazing
season and may no longer be
individually housed: Except, That, an
animal shall not be confined or tethered
in a way that prevents the animal from
lying down, standing up, fully
extending its limbs, and moving about
freely;
(3) In the case of fiber bearing
animals, for short periods for shearing;
and
(4) In the case of dairy animals, for
short periods daily for milking. Milking
must be scheduled in a manner to
ensure sufficient grazing time to provide
each animal with an average of at least
30 percent DMI from grazing throughout
the grazing season. Milking frequencies
or duration practices cannot be used to
deny dairy animals pasture.
(d) Ruminant slaughter stock,
typically grain finished, shall be
maintained on pasture for each day that
the finishing period corresponds with
the grazing season for the geographical
location. Yards, feeding pads, or
feedlots may be used to provide finish
feeding rations. During the finishing
period, ruminant slaughter stock shall
be exempt from the minimum 30
percent DMI requirement from grazing.
Yards, feeding pads, or feedlots used to
provide finish feeding rations shall be
large enough to allow all ruminant
slaughter stock occupying the yard,
feeding pad, or feed lot to feed without
crowding and without competition for
food. The finishing period shall not
exceed one-fifth (1/5) of the animal’s
total life or 120 days, whichever is
shorter.
(e) The producer of an organic
livestock operation must manage
manure in a manner that does not
contribute to contamination of crops,
soil, or water by plant nutrients, heavy
metals, or pathogenic organisms and
optimizes recycling of nutrients and
must manage pastures and other
outdoor access areas in a manner that
does not put soil or water quality at risk.
■ 5. Add § 205.241 to read as follows:
§ 205.241
Avian living conditions.
(a) Avian year-round living
conditions. The producer of an organic
poultry operation must establish and
maintain year-round poultry living
conditions that accommodate the health
and natural behavior of poultry,
including: year-round access to
outdoors; shade; shelter; exercise areas;
fresh air; direct sunlight; clean water for
drinking; materials for dust bathing; and
adequate outdoor space to escape
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aggressive behaviors suitable to the
species, its stage of life, the climate, and
environment. Poultry may be
temporarily denied access to the
outdoors in accordance with paragraph
(d) of this section.
(b) Indoor space requirements.
(1) Poultry housing must be
sufficiently spacious to allow all birds
to move freely, stretch their wings,
stand normally, and engage in natural
behaviors.
(2) Producers must monitor ammonia
levels at least monthly and implement
practices to maintain ammonia levels
below 10 ppm. When ammonia levels
exceed 10 ppm, producers must
implement additional practices and
additional monitoring to reduce
ammonia levels below 10 ppm.
Ammonia levels must not exceed 25
ppm.
(3) For layers and fully feathered
birds, artificial light may be used to
prolong the day length, to provide up to
16 hours of continuous light. Artificial
light intensity must be lowered
gradually to encourage hens to move to
perches or settle for the night.
(4) Exit areas—poultry houses must
have sufficient exit areas that are
appropriately distributed to ensure that
all birds have ready access to the
outdoors; producers subject to
requirements in 21 CFR part 118
Production, Storage, and Transportation
of Shell Eggs must take steps to prevent
stray poultry, wild birds, cats, and other
animals from entering poultry houses.
(5) Perches—for layers (Gallus gallus),
six inches of perch space must be
provided per bird. Perch space may
include the alighting rail in front of the
nest boxes. All layers must be able to
perch at the same time except for aviary
housing, in which 55 percent of layers
must be able to perch at the same time.
(6) All birds must have access to areas
in the house that allow for scratching
and dust bathing. Litter must be
provided and maintained in a dry
condition.
(7) Houses with slatted/mesh floors
must have 30 percent minimum of solid
floor area available with sufficient litter
available for dust baths so that birds
may freely dust bathe without crowding.
(8) For layers (Gallus gallus), indoor
stocking density must not exceed (live
bird weight):
(i) Mobile housing: 4.5 pounds per
square foot.
(ii) Aviary housing: 4.5 pounds per
square foot.
(iii) Slatted/mesh floor housing: 3.75
pounds per square foot.
(iv) Floor litter housing: 3.0 pounds
per square foot.
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(v) Other housing: 2.25 pounds per
square foot.
(9) For pullets (Gallus gallus), indoor
stocking density must not exceed 3.0
pounds of bird per square foot.
(10) For broilers (Gallus gallus),
indoor stocking density must not exceed
5.0 pounds of bird per square foot.
(11) Indoor space includes flat areas
available to birds, excluding nest boxes.
(12) Indoor space may include
enclosed porches and lean-to type
structures (e.g., screened in, roofed) as
long as the birds always have access to
the space, including during temporary
confinement events. If birds do not have
continuous access to the porch during
temporary confinement events, this
space must not be considered indoors.
(c) Outdoor space requirements.
(1) Access to outdoor space and door
spacing must be designed to promote
and encourage outside access for all
birds on a daily basis. Producers must
provide access to the outdoors at an
early age to encourage (i.e., train) birds
to go outdoors. Birds may be
temporarily denied access to the
outdoors in accordance with
§ 205.241(d).
(2) At least 50 percent of outdoor
space must be soil. Outdoor space with
soil must include maximal vegetative
cover appropriate for the season,
climate, geography, species of livestock,
and stage of production. Vegetative
cover must be maintained in a manner
that does not provide harborage for
rodents and other pests.
(3) Shade may be provided by
structures, trees, or other objects in the
outdoor area.
(4) For layers (Gallus gallus), outdoor
space must be provided at a rate of no
less than one square foot for every 2.25
pounds of bird in the flock.
(5) For pullets (Gallus gallus), outdoor
space must be provided at a rate of no
less than one square foot for every 3.0
pounds of bird in the flock.
(6) For broilers (Gallus gallus),
outdoor space must be provided at a rate
of no less than one square foot for every
5.0 pounds of bird in the flock.
(7) Outdoor space may include
porches and lean-to type structures that
are not enclosed (e.g., with roof, but
with screens removed) and allow birds
to freely access other outdoor space.
(d) Temporary confinement. The
producer of an organic poultry
operation may temporarily confine
birds. Confinement must be recorded.
Operations may temporarily confine
birds when one of the following
circumstances exists:
(1) Inclement weather, including
when air temperatures are under 40
degrees F or above 90 degrees F.
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(2) The animal’s stage of life,
including:
(i) The first 4 weeks of life for broilers
(Gallus gallus);
(ii) The first 16 weeks of life for
pullets (Gallus gallus); and
(iii) Until fully feathered for bird
species other than Gallus.
(3) Conditions under which the
health, safety, or well-being of the
animal could be jeopardized.
(4) Risk to soil or water quality,
including to establish vegetation by
reseeding the outdoor space.
(5) Preventive healthcare procedures
or for the treatment of illness or injury
(neither various life stages nor egg
laying is an illness or injury).
(6) Sorting or shipping birds and
poultry sales, provided that the birds are
maintained under continuous organic
management, throughout the extent of
their allowed confinement.
(7) For nest box training, provided
that birds shall not be confined any
longer than required to establish the
proper behavior. Confinement must not
exceed five weeks over the life of the
bird.
(8) For 4–H, National FFA
Organization, and other youth projects,
provided that temporary confinement
for no more than one week prior to a fair
or other demonstration, through the
event, and up to 24 hours after the birds
have arrived home at the conclusion of
the event. During temporary
confinement, birds must be under
continuous organic management,
including organic feed, for the duration
of confinement. Notwithstanding the
requirements in paragraph (d)(6) of this
section, facilities where 4–H, National
FFA Organization, and other youth
events are held are not required to be
certified organic for the participating
birds to be sold as organic, provided all
other organic management practices are
followed.
(e) Manure management. The
producer of an organic poultry
operation must manage manure in a
manner that does not contribute to
contamination of crops, soil, or water by
plant nutrients, heavy metals, or
pathogenic organisms. The producer
must also optimize recycling of
nutrients and must manage outdoor
access in a manner that does not put soil
or water quality at risk.
■ 6. Add § 205.242 to read as follows:
§ 205.242
Transport and slaughter.
(a) Transportation.
(1) Certified organic livestock must be
clearly identified as organic, and this
identity must be traceable for the
duration of transport.
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(2) All livestock must be fit for
transport to buyers, auction or slaughter
facilities.
(i) Calves must have a dry navel cord
and be able to stand and walk without
human assistance.
(ii) Non-ambulatory animals must not
be transported for sale or slaughter.
Such animals may be medically treated
or euthanized.
(3) Adequate and season-appropriate
ventilation is required for all livestock
trailers, shipping containers, and any
other mode of transportation used to
protect animals against cold and heat
stresses.
(4) Bedding must be provided on
trailer floors and in holding pens as
needed to keep livestock clean, dry, and
comfortable during transport and prior
to slaughter. Bedding is not required in
poultry crates. When roughages are used
for bedding, they must be certified
organic.
(5) Arrangements for water and
organic feed must be made if transport
time, including all time on the mode of
transportation, exceeds 12 hours.
(i) The producer or handler of an
organic livestock operation, who is
responsible for overseeing the transport
of organic livestock, must provide
records to certifying agents during
inspections or upon request that
demonstrate that transport times for
organic livestock are not detrimental to
the welfare of the animals and meet the
requirements of paragraph (a)(5) of this
section.
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(ii) [Reserved]
(6) Organic producers and handlers,
who are responsible for overseeing the
transport of organic livestock, must have
emergency plans in place that
adequately address possible animal
welfare problems that might occur
during transport.
(b) Mammalian slaughter.
(1) Producers and handlers who
slaughter organic livestock must be in
compliance, as determined by FSIS,
with the Federal Meat Inspection Act
(21 U.S.C. 603(b) and 21 U.S.C. 610(b)),
the regulations at 9 CFR part 313
regarding humane handling and
slaughter of livestock, and the
regulations of 9 CFR part 309 regarding
ante-mortem inspection.
(2) Producers and handlers who
slaughter organic exotic animals must
be in compliance with the Agricultural
Marketing Act of 1946 (7 U.S.C. 1621, et
seq.), the regulations at 9 CFR parts 313
and 352 regarding the humane handling
and slaughter of exotic animals, and the
regulations of 9 CFR part 309 regarding
ante-mortem inspection.
(3) Producers and handlers who
slaughter organic livestock or exotic
animals must provide all
noncompliance records related to
humane handling and slaughter issued
by the controlling national, federal, or
state authority and all records of
subsequent corrective actions to
certifying agents during inspections or
upon request.
(c) Avian slaughter.
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48595
(1) Producers and handlers who
slaughter organic poultry must be in
compliance, as determined by FSIS,
with the Poultry Products Inspection
Act requirements (21 U.S.C. 453(g)(5));
the regulations at paragraph (v) of the
definition of ‘‘Adulterated’’ in 9 CFR
381.1(b), and 9 CFR 381.90, and
381.65(b)); and FSIS Directives 6100.3
and 6910.1.
(2) Producers and handlers who
slaughter organic poultry must provide
all noncompliance records related to the
use of good manufacturing practices in
connection with slaughter issued by the
controlling national, federal, or state
authority and all records of subsequent
corrective actions to the certifying agent
at inspection or upon request.
(3) Producers and handlers who
slaughter organic poultry, but are
exempt from or not covered by the
requirements of the Poultry Products
Inspection Act, must ensure that:
(i) No lame birds may be shackled,
hung, or carried by their legs;
(ii) All birds shackled on a chain or
automated system must be stunned
prior to exsanguination, with the
exception of ritual slaughter; and
(iii) All birds must be irreversibly
insensible prior to being placed in the
scalding tank.
Erin Morris,
Associate Administrator, Agricultural
Marketing Service.
[FR Doc. 2022–16980 Filed 8–5–22; 8:45 am]
BILLING CODE 3410–02–P
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]]>Agencies
[Federal Register Volume 87, Number 152 (Tuesday, August 9, 2022)]
[Proposed Rules]
[Pages 48562-48595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-16980]
[[Page 48561]]
Vol. 87
Tuesday,
No. 152
August 9, 2022
Part II
Department of Agriculture
-----------------------------------------------------------------------
Agricultural Marketing Service
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7 CFR Part 205
National Organic Program (NOP); Organic Livestock and Poultry
Standards; Proposed Rule
Federal Register / Vol. 87 , No. 152 / Tuesday, August 9, 2022 /
Proposed Rules
[[Page 48562]]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 205
[Doc. No. AMS-NOP-21-0073]
RIN 0581-AE06
National Organic Program (NOP); Organic Livestock and Poultry
Standards
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The United States Department of Agriculture's (USDA)
Agricultural Marketing Service (AMS) proposes to amend the organic
livestock and poultry production requirements by adding new provisions
for livestock handling and transport for slaughter and avian living
conditions; and expanding and clarifying existing requirements covering
livestock care and production practices and mammalian living
conditions.
DATES: Comments must be received by October 11, 2022.
AMS will host a virtual listening session on August 19, 2022, from
12:00 p.m. to approximately 2:00 p.m. Eastern Time (ET) to hear
comments regarding this proposed rule. The deadline to register for
oral comment is 11:59 p.m. ET, August 15, 2022. Access information will
be published on the AMS website prior to the listening session at
https://www.ams.usda.gov/event/listening-session-organic-livestock-and-poultry-standards.
ADDRESSES: Interested persons may comment on this proposed rule using
one of the following methods:
Oral Comments: Each commenter wishing to address AMS must pre-
register by 11:59 p.m. ET on August 15, 2022. Each commenter will be
allotted a speaking slot during the virtual listening session.
Instructions for registering for the listening session can be found at
https://www.ams.usda.gov/event/listening-session-organic-livestock-and-poultry-standards.
Federal eRulemaking Portal: https://www.regulations.gov. Follow the
instructions for submitting written comments. The deadline to submit
written comments is 11:59 p.m. ET, October 11, 2022.
Mail: AMS strongly prefers comments be submitted electronically.
However, written comments may be submitted (i.e., postmarked) via mail
to Erin Healy, MPH., Director Standards Division, National Organic
Program, USDA-AMS-NOP, Room 2646-So., Ag Stop 0268, 1400 Independence
Ave. SW, Washington, DC 20250-0268. Mailed comments must be postmarked
by October 11, 2022.
Transcript: The listening session will be recorded, and a
transcript will be posted on the AMS website and on https://www.regulations.gov (search for docket ``AMS-NOP-21-0073'') following
the session.
Meeting Accommodations: The listening session will be held
virtually. If you are a person requiring a reasonable accommodation,
please make requests by the registration deadline (which is 11:59 p.m.
ET on August 15, 2022) for sign language interpretation or other
reasonable accommodation to the person listed under FOR FURTHER
INFORMATION CONTACT. Determinations for a reasonable accommodation will
be made on a case-by-case basis.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
rulemaking. All comments received will be posted without change to
https://www.regulations.gov, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``What Should I Consider
as I Prepare My Comments for AMS?'' heading of the SUPPLEMENTARY
INFORMATION section of this document.
Docket: For access to the docket, including background documents
and comments received, go to https://www.regulations.gov (search for
docket ``AMS-NOP-21-0073''). Comments submitted in response to this
proposed rule will also be available for viewing in person at USDA-AMS,
National Organic Program, Room 2646-South Building, 1400 Independence
Ave. SW, Washington, DC, from 9 a.m. to 12 noon and from 1 p.m. to 4
p.m., Monday through Friday (except official Federal holidays). Persons
wanting to visit the USDA South Building to view comments received in
response to this proposed rule are requested to make an appointment in
advance by calling (202) 720-3252.
FOR FURTHER INFORMATION CONTACT: Erin Healy, MPH, Director of Standards
Division, Telephone: (202) 720-3252; Email: [email protected].
Executive Summary
A. Purpose of the Proposed Rule
AMS is writing this proposed rule to clarify and ensure consistent
application of the USDA organic standards and therefore mitigate
information asymmetries and associated costs amongst certifying agents,
producers, and consumers. This action will augment the USDA organic
livestock production regulations with clear provisions to fulfill the
purposes of the Organic Foods Production Act (OFPA) (7 U.S.C. 6501-
6524): to assure consumers that organically produced products meet a
consistent, uniform standard and to further facilitate interstate
commerce of organic products. OFPA mandates that detailed livestock
regulations be developed through notice and comment rulemaking (7
U.S.C. 6509(g)) and USDA did so when it published the final rule on the
National Organic Program (65 FR 80547; December 21, 2000). In 2010, AMS
published a final rule (75 FR 7154; February 17, 2010) clarifying the
pasture and grazing requirements for organic ruminant livestock. This
proposed rule would provide clarity for the production of organic
livestock and poultry, consistent with recommendations provided by
USDA's Office of Inspector General and nine separate recommendations
from the National Organic Standards Board (NOSB).
B. Summary of Provisions
This proposed rule would update the USDA organic regulations for
livestock production. The proposed changes would address a range of
topics related to the care of organic livestock, including:
Livestock health care practices--the proposed rule would specify
which physical alteration procedures are prohibited or restricted for
use on organic livestock. The proposed livestock health care practice
standards include requirements for euthanasia to reduce suffering of
any sick or disabled livestock;
Living conditions--this proposed rule would set separate standards
for mammalian and avian livestock living conditions to better reflect
the needs and behaviors of the different species, as well as related
consumer expectations. The proposed mammalian livestock standards would
cover both ruminants and swine. The proposed avian livestock living
standards would set maximum indoor and outdoor stocking densities to
ensure the birds have sufficient space to engage in natural behaviors;
Transport of animals--this proposed rule would add new requirements
on the transport of organic livestock to sale or slaughter;
Slaughter--this proposed rule would add a new section to clarify
how organic slaughter facility practices and USDA Food Safety and
Inspection Service
[[Page 48563]]
(FSIS) regulations work together to support animal welfare.
C. Costs and Benefits
Much of the proposed rule focuses on clarifying and codifying
existing practices, and AMS assumes no costs or benefits are
accumulated for those changes. We do expect costs and benefits to occur
in broiler production through increased indoor space for broilers and
in egg production through increased outdoor access for layers. In
summary, AMS estimates that the rule would increase discounted net
benefits between $99 million and $119 million annually. This range
spans three producer response scenarios, two implementation periods for
the outdoor space requirements, and a no-rule scenario (see Table 1,
Table 2, and Table 3).
Table 1--Executive Summary: Costs and Benefits for Eggs and Broilers
----------------------------------------------------------------------------------------------------------------
Proposed rule
(5-year Proposed rule (5- Proposed rule
compliance--No year compliance-- (15-year Proposed rule
Growth) Growth) compliance)
Eggs Eggs Eggs Broilers
(per dozen) (per dozen) (per dozen) (per pound)
----------------------------------------------------------------------------------------------------------------
Benefits (Consumer Willingness to Pay)..... 0.21 0.21 0.21 0.34
Benefits with 80% Breaker Egg Adjustment... 0.16 0.16 0.16 ..............
Cost (Change in Average Total Cost of 0.05 0.05 0.05 0.02
Production)...............................
Net Benefit per Unit....................... 0.11 0.11 0.11 0.32
20-Year Annualized Net Benefits (3%) 10,429 18,757 10,278 101,011
($1,000)..................................
20-Year Annualized Net Benefits (7%) 9,236 16,132 8,027 91,418
($1,000)..................................
----------------------------------------------------------------------------------------------------------------
Average Discounted Domestic Information .............. ................... $194,777
Collection Cost.......................
----------------------------------------------------------------------------------------------------------------
AMS estimates that the discounted costs for layer operations would
range between $3.6 million and $8.4 million annually. To monetize the
benefits of this rule, AMS used research that measured consumers'
willingness-to-pay for outdoor access at a premium of between $0.16 and
$0.25 per dozen eggs, controlling for other factors, including the
organic label. Based on this, AMS estimates the annually discounted
benefits falling between $11.6 million to $27.1 million.\1\
---------------------------------------------------------------------------
\1\ These ranges capture the discounted high and low estimates
across all three layer scenarios, which vary in use of growth and
implementation time. All three of the layer models account for
approximately 50% of initial production leaving due to difficulty
for some pit-litter and aviary houses to comply with the proposed
requirements, if finalized.
Table 2--Executive Summary of Annualized Discounted Net Benefits for Eggs
[Thousands of $]
--------------------------------------------------------------------------------------------------------------------------------------------------------
No rule Growth prevented and Growth and exit in year Growth and exit in year
--------------------------------------------------------------------------- exit in year 6 (5-year 6 (5-year co-proposal) 16 (15-year co-
co-proposal) -------------------------- proposal)
Discount rate 3% 7% -------------------------- -------------------------
3% 7% 3% 7% 3% 7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized Benefits............................. $0.00 $0.00 $15,651 $13,860 $27,110 $23,315 $14,858 $11,605
Annualized Costs................................ 0.00 0.00 5,222 4,625 8,352 7,183 4,580 3,578
Annualized Net Benefits......................... 0.00 0.00 10,429 9,236 18,757 16,132 10,278 8,027
--------------------------------------------------------------------------------------------------------------------------------------------------------
AMS estimates that the total annual discounted costs for broiler
compliance would be between $5.7 million and $6.3 million. The benefits
for broilers are calculated using a willingness-to-pay at a premium of
$0.34/lb. With this willingness-to-pay, the annual discounted benefits
range between $97 million and $107 million.\2\
---------------------------------------------------------------------------
\2\ The broiler model assumes that all broiler production is
able to comply with the rule because of the prevalence of single
story housing and existing land near production houses. Therefore,
exiting is not considered in the broiler model and a standard 3-year
compliance is used with growth continuing at the historic average.
Table 3--Executive Summary of Annualized Discounted Net Benefits for Broilers
[Thousands of $]
----------------------------------------------------------------------------------------------------------------
Broiler
---------------------------------------------------------------
Discount rate No rule With rule
---------------------------------------------------------------
3% 7% 3% 7%
----------------------------------------------------------------------------------------------------------------
Annualized Discounted Values:
Benefits.................................... $0.00 $0.00 $107,295 $97,105
Costs....................................... 0.00 0.00 6,284 5,687
Net Benefits................................ 0.00 0.00 101,011 91,418
----------------------------------------------------------------------------------------------------------------
[[Page 48564]]
SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Information
A. Does this proposed action apply to me?
B. What should I consider as I prepare my comments for AMS?
II. Background
A. Current Organic Livestock Standards
B. NOSB Recommendations
C. AMS Policy, Regulatory History, and Withdrawal
D. Related Issues
III. Overview of Proposed Amendments
A. Definitions
B. Livestock Care and Production Practices Standard
C. Mammalian Livestock Living Conditions
D. Avian Living Conditions
E. Transport and Slaughter
F. Slaughter Requirements
IV. Related Documents
V. Executive Orders 12866 and 13563--Executive Summary
VI. Executive Order 12988
VII. Executive Order 13175
VIII. Paperwork Reduction Act
IX. Civil Rights Impact Analysis
List of Subjects in 7 CFR Part 205
I. General Information
A. Does this proposed action apply to me?
You may be affected by the proposed action if you are engaged in
the meat, egg, poultry, dairy, or animal fiber industries. Potentially
affected entities may include, but are not limited to:
Individuals or business entities that are considering
organic certification for a new or existing livestock farm or slaughter
facility;
Existing livestock farms and slaughter facilities that are
currently certified organic under the USDA organic regulations; and
Certifying agents accredited by USDA to certify organic
livestock operations and organic livestock handling operations.
This listing is not intended to be exhaustive, but identifies key
entities likely to be affected by this action. Other types of entities
could also be affected. To determine whether you or your business may
be affected by this action, you should carefully examine the proposed
regulatory text. If you have questions regarding the applicability of
this action to a particular entity, consult the person listed under FOR
FURTHER INFORMATION CONTACT.
B. What should I consider as I prepare my comments for AMS?
Specifically, AMS seeks comment on the following topics:
1. Do the proposed amendments provide enough clarity to farmers,
handlers, and certifying agents to be able to comply with the proposed
requirements?
2. Do the assumptions and estimates outlined in the Regulatory
Impact Analysis and Regulatory Flexibility Analysis accurately reflect
the current practices and production rates among organic poultry and
egg producers? Specifically, to what degree do the proposed
requirements align with third-party animal welfare certification
programs and current industry practices? Are assumptions about welfare
surplus valid? Is the period of analysis and the estimates about the
useful life of a poultry house appropriate? Are AMS's benefit estimates
for broilers appropriate? Are AMS's cost estimates for small producers
accurate? Are AMS's estimates for the paperwork burden accurate?
3. Do the proposed amendments to Sec. 205.239 related to mammalian
livestock reflect current practices among organic mammalian livestock
producers or impose new requirements on these operations?
4. What is an appropriate and feasible implementation timeframe for
the proposed changes? Specifically, AMS seeks comment on the following
implementation approach and timeframes:
(a) One year for all proposed changes, except for the indoor space
requirements for broiler operations and the outdoor space requirements
for layer operations;
(b) Three years for the indoor space requirements for broilers; and
(c) Outdoor space requirements for layers (three options):
Option 1: Layer operations certified at the time of the rule's
effective date (typically 60 days after publication) or within three
years of the effective date will have five years to comply with the
rule's outdoor space requirements concerning stocking density, exit
doors, soil, and vegetation. Those operations certified more than three
years after the rule's effective date will need to comply with all of
the rule's outdoor access requirements immediately; or
Option 2: Layer operations certified at the time of the rule's
effective date will have 15 years to comply with the rule's outdoor
space requirements concerning stocking density, exit doors, soil, and
vegetation. Fifteen years was selected in order to allow previously
built facilities to fully depreciate under the Internal Revenue Service
(IRS) depreciation schedule. New entrants certified within three years
of the rule being effective must comply with the outdoor space
requirements within five years of the effective date. Those operations
certified more than three years after the rule's effective date will
need to comply with all of the rule's outdoor access requirements
immediately.
Option 3: AMS seeks comments on alterative timeframes to those
presented above for the outdoor space requirements for layer
operations, including justification for alternatives and data on the
costs and benefits.
These options and their costs and benefits are discussed below in
Section V (``Executive Orders 12866 and 13563--Executive Summary'').
Detailed information can be found in the Regulatory Impact Analysis for
this proposed rule.
II. Background
This proposed rule addresses health care, transport, slaughter, and
living conditions for organic livestock. Furthermore, the provisions
for outdoor access for poultry have a long history of agency and NOSB
actions and are a focal issue in this proposed rule. Outdoor access
practices, particularly for organic layers, vary among certified
operations: some operations provide large, open-air outdoor areas,
while other operations provide minimal outdoor space or use screened,
covered enclosures commonly called ``porches'' to provide outdoor
space. An audit conducted by the USDA Office of the Inspector General
(OIG) identified inconsistencies in certification practices regarding
the use of porches as outdoor space.\3\ To address this finding, AMS
issued draft guidance \4\ but determined that rulemaking was preferable
to resolve the divergent outdoor access practices for organic poultry.
To assist with the rulemaking, the NOSB developed a series of
recommendations to clarify organic livestock health care, transport,
slaughter, and living conditions, including outdoor access for poultry.
The NOSB deliberation process revealed broad support within the organic
community and consumer expectations for specific guidelines for
meaningful outdoor access for organically-produced poultry.
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\3\ USDA, Office of the Inspector General. March 2010. Audit
Report 01601-03-Hy, Oversight of the National Organic Program.
Copies may be available at https://www.usda.gov/oig/reports/audit-reports or by contacting the Office at https://www.usda.gov/oig/foia. A copy of the report is also available in the docket for this
proposed rule and can be found be searching for the docket number
``AMS-NOP-21-0073'' at https://www.regulations.gov/.
\4\ On October 13, 2010, AMS published a Notice of Availability
of Draft Guidance and Request for Comments in the Federal Register
(75 FR 62693).
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A. Current Organic Livestock Standards
The purpose of the OFPA, 7 U.S.C. 6501 et seq., is to ``to
establish national
[[Page 48565]]
standards governing the marketing of certain agricultural products as
organically produced products''; ``assure consumers that organically
produced products meet a consistent standard''; and ``facilitate
interstate commerce in fresh and processed food that is organically
produced.'' 7 U.S.C. 6501. To that end, Congress broadly authorized the
Secretary of Agriculture to promulgate and implement regulations
related to the national organic program. 7 U.S.C. 6506(a)(11).
AMS administers the National Organic Program (NOP), which oversees
the development and implementation of the national standards for the
production, handling, and marketing of organically produced
agricultural products. OFPA at 7 U.S.C. 6509, among other sections,
authorizes the USDA to develop and implement regulations regarding
standards for organic livestock products. 7 U.S.C. 6509(g).
Furthermore, OFPA authorizes the creation of the NOSB to advise USDA
about the implementation of standards and practices for organic
production. 7 U.S.C. 6518.
The NOSB is a 15-member Federal Advisory Board appointed by the
Secretary of Agriculture that meets in public twice annually. OFPA
specifies the composition of the NOSB and reserves four NOSB seats for
producers/growers and two seats for handlers/processors. The NOSB
solicits public comment on topics related to the USDA organic
regulations to inform its public deliberations and decision making at
public meetings. If AMS agrees with an NOSB recommendation, a
recommendation to amend the USDA organic regulations must be
implemented through the notice-and-comment rulemaking process. A
summary of the NOSB recommendations on livestock production practices
follows in the NOSB RECOMMENDATIONS section.
Consistent with the Secretary's authority to promulgate regulations
for organic livestock products, 7 U.S.C. 6509, USDA organic regulations
include broad and general requirements for ensuring the living
conditions associated with certified organic livestock. For example,
the USDA organic regulations currently require organic producers to
provide year-round access to the outdoors, shade, shelter, exercise
areas, fresh air, clean drinking water, and direct sunlight (7 CFR
205.239(a)(1)). For all livestock, the regulations also require: (1) An
environment that allows animals to express natural behaviors; (2)
preventive health care to reduce the likelihood of illness; and (3)
protection from conditions that jeopardize an animal's well-being, such
as predators and adverse weather.
USDA-accredited certifying agents inspect organic operations and
decide whether the operation's practices comply with the USDA organic
regulations. Certifying agents must consider site-specific conditions,
including prevalent pests and diseases, weather, and natural resources
of the operation when determining the acceptability of a particular
management practice. Certifying agents must also determine if organic
operations provide ``access to the outdoors'' in a manner that meets
the current requirements. 7 CFR 205.239(a)(1). This flexibility results
in significant variation in the manner by which producers meet the
requirements. For example, in organic poultry production, producers
meet the requirement for outdoor access by providing animals with
extensive pasture and also by providing a small roofed enclosure
(including porches with no access to soil or vegetation). To complicate
the assessment of access to the outdoors, a certifying agent generally
only inspects an organic operation during limited and discrete periods
of time.
The disparities in amount and quality of outdoor access have
economic implications for producers. This disparity also increases
consumer search costs and has been identified by USDA as a possible
consumer welfare loss.\5\ Consumer welfare loss could result in reduced
confidence in and demand for organic eggs, as the organic label may
inconsistently signal its attributes and provide less-consistent value.
This may create additional search costs as consumers seek to understand
and choose the marketing claim or label that most closely matches their
preferences. In addition, a growing body of research shows that outdoor
and pasture access encourages foraging and supports the natural
behaviors of livestock and poultry. These behaviors may be positively
associated with improved health and well-being, may be better for the
environment, and may result in healthier livestock products for human
consumption and poultry.6 7
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\5\ Mojduszka, Eliza M. (2018) ``An Analysis of the Specialty
Egg Market: Hedonic Price with Fixed Brand Effects vs. Random
Coefficient Discrete Choice Model.'' https://www.usda.gov/sites/default/files/documents/Mojduszka%202018%20An%20Analysis%20of%20the%20Specialty%20Egg%20Market.pdf.
\6\ Is Grassfed Meat and Dairy Better for Human and
Environmental Health? Frederick D. Provenza, Scott L. Kronberg, and
Pablo Gregorini, Front Nutr. 2019; 6: 26. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6434678/.
\7\ Phillips HN, Heins BJ. Effects of Outdoor Stocking Density
on Growth, Feather Damage and Behavior of Slow-Growing Free-Range
Broilers. Animals (Basel). 2021;11(3):688. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7998225/.
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To resolve the divergence in practices under the organic label, the
NOSB, organic trade groups, and consumer groups have asked AMS through
multiple public meetings and public comment periods to revise the
organic regulations.
The organic regulations also include more specific requirements for
livestock production. These have existed since publication of the USDA
organic regulations in December 2000 (65 FR 80547) and have been
revised intermittently. Additional specificity was added by a 2010
final rule (75 FR 7153; 76 FR 26927) to require that ruminants,
specifically, graze at least 120 days per year and receive 30 percent
of dry matter intake from grazing (7 CFR 205.239) and to describe
situations that warrant denying ruminants access to pasture or the
outdoors (e.g., for newborn dairy cattle up to six months) (7 CFR
205.239(c)(2)). This proposed rule seeks to similarly elaborate on the
current regulations, especially for avian species and mammalian, non-
ruminant livestock. For example, the proposed rule elaborates on the
current requirements for year-round access to the outdoors, fresh air,
and direct sunlight by including requirements for outdoor space (per
bird), establishing thresholds for ammonia gas, and requiring doors in
poultry houses to ensure all birds may access the outdoors. The
proposed rule also elaborates on current standards (7 CFR 205.239)
related to situations that may warrant temporary confinement of
animals.
B. Prior NOSB Recommendations
Between 1994 and 2011, the NOSB made nine recommendations regarding
livestock health care and welfare in organic production. Between 1997
and 2000, AMS issued two proposed rules and a final rule regarding
national standards for the production and handling of organic products,
including livestock and their products. The NOSB, as well as members of
the public, commented on these rules with regard to the health care and
welfare of livestock. The key actions from that period that have led to
the development of the existing standards on organic livestock are
summarized below.
(1) In June 1994, the NOSB recommended a series of provisions to
address the care and handling of livestock on organic farms. Within
this recommendation, the NOSB developed
[[Page 48566]]
much of the framework for organic health care and welfare of livestock,
including health care standards, living conditions, and transportation
of livestock practices.
(2) In April and October 1995, the NOSB made a series of
recommendations as addendums to the June 1994 recommendations. These
recommendations further addressed various health care practices, a
requirement for outside access, and the use of vaccines.
(3) On December 16, 1997, AMS responded to the 1994 and 1995 NOSB
recommendations in a proposed rule to establish the NOP (62 FR 65850).
Consistent with the NOSB's recommendation, the proposed language would
have required that organic livestock producers develop a preventive
health care plan and use synthetic drugs only if preventive measures
failed. The 1997 proposed rule also included standards for livestock
living conditions, including when livestock would be permitted to be
confined. This proposed rule was not finalized.
(4) In March 1998, the NOSB reaffirmed its earlier recommendations
on livestock health care and living conditions. The 1998 NOSB
recommendation also stressed the importance of treating sick livestock
by recommending that any organic producer who did not take specified
actions to provide care for a diseased animal would lose certification.
This recommendation also included provisions to clarify when livestock
could be confined indoors and defined ``outdoors'' as having direct
access to sunshine.
(5) On March 13, 2000, AMS published a second proposed rule to
establish the National Organic Program (65 FR 13512). AMS responded to
the NOSB's March 1998 recommendation on livestock health care and
living conditions in this proposed rule. AMS proposed that organic
producers must use disease prevention practices first, then approved
synthetic medications only if preventive measures failed. However, a
producer would need to use all appropriate measures to save the animal
even if the animal lost organic status. In addition, AMS proposed that
the living conditions for organic livestock must maintain the health of
the animals and allow for natural behaviors, including access to the
outdoors.
(6) On December 21, 2000, AMS published a final rule establishing
the USDA organic regulations (65 FR 80548) (``NOP Rule''). Through this
action, AMS finalized the standards for health care practices and
livestock living conditions. This rule addressed a range of matters
related to organic livestock production, including organic feed; use of
hormones and supplements; measures to avoid disease and illness;
veterinary biologics, medications, synthetic parasiticides, and other
drugs; and general principles governing housing, pasture conditions,
sanitation practices, and physical alterations. The Rule also generally
required producers to provide organic livestock with ``access to the
outdoors, shade, shelter, exercise areas, fresh air, and direct
sunlight suitable to the species, its stage of production, the climate,
and the environment,'' but allowed producers to satisfy those baseline
criteria in different ways. That rule became effective on February 20,
2001, and was fully implemented on October 21, 2002.
(7) In May 2002, the NOSB again addressed outdoor access, stating
this should include open air and direct access to sunshine.\8\ In
addition, the May 2002 recommendation stated that bare surfaces other
than soil do not meet the NOP Rule's intent of outdoor access for
poultry. This recommendation also included clarifications as to when
livestock could be temporarily confined.
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\8\ NOSB, 2002. Recommendation Access to Outdoors for Poultry.
Available at: https://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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(8) In March 2005, the NOSB recommended that the temporary
confinement provision for ``stage of production'' be changed to ``stage
of life.'' \9\ The NOSB reasoned that confinement for a ``stage of
life'' would limit producers from confining animals for long periods,
such as confinement during the entire period that a dairy animal is
lactating. ``Stage of life'' was reasoned to be more specific than
``stage of production.''
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\9\ NOSB, 2005. Formal Recommendation by the NOSB to NOP. NOSB
recommendation for Rule change--``Stage of Production'' to ``Stage
of Life.'' Available at: https://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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(9) On October 24, 2008, AMS published a proposed rule on access to
pasture for ruminant livestock (73 FR 63584). AMS published the final
rule, Access to Pasture (Livestock) on February 17, 2010 (75 FR 7154).
This rule was based on several NOSB recommendations regarding ruminant
livestock feed and living conditions. This rule set a requirement that
ruminants obtain a minimum of 30 percent dry matter intake from grazing
during the grazing season (7 CFR 205.237(c)).
(10) Between 2009 and 2011, the NOSB issued a series of
recommendations on livestock welfare. These were intended to
incorporate prior NOSB recommendations that AMS had not addressed. The
November 2009 recommendation suggested revisions and additions to the
livestock health care practice standards and living conditions
standards.\10\ The NOSB recommended banning or restricting certain
physical alterations and requiring organic producers to keep records on
livestock that were lame and/or sick and how they were treated. This
recommendation proposed to separate mammalian living conditions from
avian living conditions sections of the USDA organic regulations so
that the provisions could be more directly tailored to various
livestock species. In the mammalian section, the NOSB proposed
mandatory group housing of swine and a requirement for rooting
materials for swine. In the avian section, the NOSB proposed a variety
of provisions, including maximum ammonia levels, perch space
requirements and outdoor access clarifications.
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\10\ NOSB, 2009. Formal Recommendation by the NOSB to the NOP,
Animal Welfare. Available at: https://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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(11) In October 2010, the NOSB passed a recommendation on the use
of drugs for pain relief.\11\ The NOSB recommended changing the health
care practice standards to allow the administration of drugs in the
absence of illness to prevent disease or alleviate pain. The NOSB
stated that such a change would improve the welfare of organic
livestock.
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\11\ NOSB, 2010. Formal Recommendation by the NOSB to the NOP,
Clarification of 205.238(c)(2). Available at: https://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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(12) In December 2011, the NOSB passed an additional livestock
welfare recommendation.\12\ The 2011 recommendation added definitions
for terms related to livestock production and provisions for health
care standard and living conditions. The NOSB also revised its prior
recommendation on physical alterations to provide a more inclusive list
of prohibited procedures. In the mammalian living conditions section,
the NOSB recommended that outdoor access for swine include a minimum of
25 percent vegetative cover at all times. For avian species, the NOSB
recommended specific indoor and outdoor space requirements, e.g.,
stocking densities, among other provisions for living conditions
specific to poultry. For layers, the NOSB
[[Page 48567]]
recommended a minimum of 2.0 ft\2\ per bird indoors and outdoors.
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\12\ NOSB, 2011. Formal Recommendation by the NOSB to the NOP,
Animal Welfare and Stocking Rates. Available at: https://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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(13) In December 2011, the NOSB passed a separate recommendation to
add standards for transportation of livestock to slaughter facilities
and the slaughter process.\13\ The NOSB's recommendation for transport
included provisions for veal calves and the trailers/trucks used to
transport animals to ensure continuous organic management. The NOSB
recommended that slaughter facilities must meet certain performance-
based standards assessed via observations of animal handling and any
slips, falls or vocalizations before and during slaughter.
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\13\ NOSB, 2011. Formal Recommendation by the NOSB to the NOP,
Animal Handling and Transport to Slaughter. Available at: https://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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C. AMS Policy, Regulatory History, and Withdrawal of OLPP
(1) AMS Policy Regarding Animal Welfare
On October 29, 2002, AMS issued a memorandum to clarify outdoor
access and temporary confinement requirements for livestock under the
USDA organic regulations.\14\ The memorandum stated that producers are
required to balance accommodations for an animal's health and natural
behavior with measures to ensure an animal's safety and well-being. The
memorandum further explained that the USDA organic regulations do not
specify an outdoor space allowance or stocking rate, nor do they
require that all animals in the herd or flock have access to the
outdoors at the same time. This memorandum explained how producers
could provide evidence of compliance to support temporary confinement.
This memorandum was incorporated into the NOP Handbook (as ``PM 11-5'')
on January 31, 2011, and is retained as current policy.
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\14\ National Organic Program, 2002. Access to the Outdoors for
Livestock. Retained as Policy Memo 11-5. Available in the NOP
Handbook: https://www.ams.usda.gov/sites/default/files/media/Program%20Handbk_TOC.pdf.
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On February 17, 2010, AMS published a final rule on Access to
Pasture (Livestock). The final rule was in response to the 2005 NOSB
recommendation and extensive public input requesting clear outdoor
access requirements for ruminant livestock. The Access to Pasture Rule
adopted new provisions relating to organic livestock production,
addressing such matters as animal feed; dry matter intake; access to
and management of pasture as an organic crop; organic bedding; and use
and management of feeding yards, feeding pads, and feedlots. The Access
to Pasture Rule also clarified that the requirements for outdoor access
and species-appropriate access to shade, shelter, exercise, fresh air,
and direct sunlight required by the NOP Rule must be provided for all
organic livestock, including poultry, on a year-round basis. The final
rule established that ruminant livestock obtain at least 30 percent dry
matter intake from grazing during the grazing season (7 CFR
205.237(c)). The rule provided clarity to correct inconsistent
application and enforcement of the outdoor access provisions for
ruminant livestock. While AMS was able to rely on stakeholder feedback
about consistent application of regulations to inform this proposed
rule, AMS was unable to look at regulatory impacts from the rule like
production levels because USDA's Economic Research Service stopped
releasing that data in 2011, and available data sources would not be
sufficient to estimate any causality or impact.
In March 2010, the USDA Office of the Inspector General (OIG)
issued a report concerning, in part, AMS guidance on outdoor access for
organic livestock.\15\ The OIG found inconsistent certification
practices regarding outdoor access for poultry. The OIG recommended
that AMS issue guidance on outdoor access for livestock.
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\15\ USDA, Office of the Inspector General. March 2010. Audit
Report 01601-03-Hy, Oversight of the National Organic Program.
Available at: https://www.usda.gov/oig/rptsauditsams.htm.
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On October 13, 2010, AMS published draft guidance, Outdoor Access
for Organic Poultry, for public comment.\16\ The draft guidance advised
certifying agents to use the 2002 and 2009 NOSB recommendations as the
basis for certification decisions regarding outdoor access for
poultry.\17\ The draft guidance informed certifying agents and
producers that maintaining poultry on soil or outdoor runs would
demonstrate compliance with the outdoor access requirement in 7 CFR
205.239. Comments received by AMS on the draft guidance are summarized
below. Given the comments and the request that USDA address this issue
through the rulemaking process, AMS determined to pursue rulemaking to
clarify outdoor access for poultry and did not finalize the draft
guidance.
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\16\ On October 13, 2010, AMS also published a Notice of
Availability of Draft Guidance and Request for Comments in the
Federal Register (75 FR 62693).
\17\ The 2002 and 2009 NOSB recommendations included daily
outdoor access from an early age and access to direct sunlight, open
air and soil.
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AMS received 69 comments on the draft guidance. Comments varied
widely. Some supported more specific and stringent stocking densities
and soil-based outdoor access, citing animal health and environmental
benefits. Other comments favored maintaining an allowance for porches
as acceptable outdoor access, citing biosecurity and animal health
concerns.
Furthermore, commenters stated that the draft guidance was
unenforceable and would not ensure year-round outside access for
poultry. These commenters suggested a minimum stocking rate of 1.75
square feet per bird in henhouses that also provide access to perches,
with an additional 5 square feet per bird available in vegetated
outdoor runs, which should be accessible to all birds at the same time.
Some comments from poultry producers supported outdoor access on
pasture or other vegetation and described health benefits and
protection of the environment that a pasture or other vegetated outdoor
access area would afford. A number of commenters, including organic
poultry producers, requested a change to the draft guidance language to
say that poultry, when outdoors, should be maintained on soil.
One trade association, some organic egg producers, and consultants
described the use of production systems that limit outdoor access via
the use of enclosed porches, so that poultry are not in contact with
soil or pasture. These commenters described the benefits of these
systems: protection from predation, pathogens that cause food safety
problems, exposure to parasites, and contact with wild birds that could
carry diseases. The commenters asserted that these systems are
consistent with the 2002 NOSB recommendation. They noted that organic
egg producers have made substantial investments in facilities with
porches. Some also expressed concerns that placing birds on soil would
affect their ability to comply with the Food and Drug Administration's
Salmonella prevention food safety regulations (21 CFR part 118).
Several producers expressed concern with the 2009 NOSB recommendation
that pullets be given outdoor access at 6 weeks of age, because layers
are not fully immunized (including for protection against Salmonella)
until 16 weeks of age and should not be exposed to uncontrolled
environments until that time.
(2) Regulatory History of the OLPP Rule
A proposed rule that incorporated NOSB recommendations was then
published in April 2016. The proposed rule included provisions related
to health care practices, such as physical alteration procedures,
euthanasia, and
[[Page 48568]]
treatment of sick animals. It also addressed living conditions for
mammalian and avian livestock, including minimum indoor and outdoor
space requirements for avian livestock. Finally, the rule addressed
requirements for transport and for slaughter practices. It received
6,675 written comments during the 90-day comment period. There were
nearly 1,500 individual comments on the proposed rule, excluding form
letters and signatures on petitions (numbering in the tens of
thousands). Comments were received from producers, producer
associations, handlers, certifying agents, consumers and consumer
groups, animal welfare organizations, veterinarians, state government
agencies, foreign government agencies, and trade associations or
organizations. Comments provided insight on the public's questions
about regulatory authority, import impact, trade agreements, and
educational avenues. Additionally, comments about the clarity of the
rule generally found it beneficial for the industry and its impact on
the label but acknowledged some challenges with universal standards.
AMS made a number of changes to this proposed rule based on
comments in order to mitigate impacts and improve the clarity of the
requirements. AMS published the Organic Livestock and Poultry Practices
final rule (OLPP Rule) on January 19, 2017 (82 FR 7042). Prior to the
OLPP Rule becoming effective, USDA decided to delay that date to allow
the new Administration to review the Rule.
(3) Withdrawal of OLPP Final Rule
After delaying the effective date of the final rule,\18\ AMS
proposed withdrawing the OLPP rule because of its emergent view that
the agency lacked the legal authority for the rulemaking, substantive
errors in the economic analysis for the rule, and a lack of market
failure (82 FR 59988, December 18, 2017). On March 13, 2018, AMS
published a final rule (Withdraw Rule) withdrawing the OLPP Rule for
those reasons (83 FR 10775). After discovering additional errors in the
economic analysis for the OLPP Rule and the Withdraw Rule, AMS
published the Organic Livestock and Poultry Practice Economic Analysis
Report on April 23, 2020, to describe all the errors and sought comment
on the Report (85 FR 22664). After considering the comments, AMS
published the Final Decision on Organic Livestock and Poultry Practices
Rule and Summary of Comments on the Economic Analysis Report on
September 17, 2020 (85 FR 57937). In the Final Decision, AMS concluded
that ``[t]o the extent the Withdrawal Rule formed an assessment of the
likely costs and benefits of the OLPP Rule based on that flawed
analysis, AMS hereby modifies that assessment and concludes simply that
the Final RIA does not support promulgation of the OLPP Rule in light
of its significant flaws.'' AMS further concluded that ``[i]mplementing
the OLPP Rule based on such a flawed economic analysis is not in the
public interest[]'' and decided not to take any further regulatory
action with respect to the OLPP Rule (85 FR 57944).
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\18\ See 82 FR 9967 (February 9, 2017); 82 FR 21677 (May 19,
2017); and 82 FR 52643 (November 14, 2017).
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In June 2021, Secretary Vilsack announced that USDA would
``reconsider the prior Administration's interpretation that [OFPA] does
not authorize USDA to regulate the practices that were the subject of
the [OLPP Rule].'' He further directed NOP ``to begin a rulemaking to
address this statutory interpretation and to include a proposal to
disallow the use of porches as outdoor space in organic production over
time and on other topics that were the subject of the OLPP final
rule.''
(a) Economic Analysis
In the Economic Analysis Report, AMS described the three errors
that had been identified in the economic analysis of the Withdraw Rule:
(1) the incorrect application of the discounting formula; (2) the use
of an incorrect willingness to pay value for eggs produced under the
new open access requirements; and (3) the incorrect application of a
depreciation treatment to the benefit calculations. The Report
explained that although the economic analysis of the Withdraw Rule
correctly identified these errors and properly addressed the first two
errors (incorrect discounting methodology and willingness-to-pay
values), it had not fully removed the incorrect depreciation treatment
from the cost and benefit calculations, which erroneously reduced the
calculation of both costs and benefits.
The Report went on to identify and discuss four categories of
additional errors in the economic analysis of the OLPP Rule that were
previously undetected and therefore inadvertently carried forward to
the economic analysis of the Withdraw Rule. These were: (1)
inconsistent or incorrect documentation of key calculation variables;
(2) an error in the volume specification affecting benefits
calculations in two of three scenarios considered; (3) the incorrect
use of production values in the benefits calculations that do not
account for projected increased mortality loss; and (4) aspects of the
cost calculations that resulted in certain costs being ignored,
underreported, or inconsistently applied. In addition, the Report
described certain minor errors that did not have a material impact on
the cost and benefit calculations (85 FR 57938).
In this proposed rule, AMS worked to ensure that the RIA for the
proposed rule addressed these concerns. Some of the mathematical or
descriptive concerns were addressed with rewriting the proposed rule.
AMS specifically addressed issues with discounting and depreciation in
the analysis and fixed various errors found by the report.
Additionally, AMS adjusted the willingness to pay for outdoor access in
eggs to the more precise measure suggested by the economic analysis
report. While AMS maintains the use of enterprise budgets in the
original rule to model costs, we updated costs to the extent possible
based on data availability and believe these models are appropriate, as
they provide the most detailed estimates for the organic industry and
USDA ERS has shown that both feed and land costs have remained
approximately steady since their development.19 20
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\19\ USDA ERS. Farmland Value. https://www.ers.usda.gov/topics/farm-economy/land-use-land-value-tenure/farmland-value/.
\20\ USDA NASS. Paid Indexes by Farm Origin and Month, Feed and
Livestock & Poultry. https://www.nass.usda.gov/Charts_and_Maps/Agricultural_Prices/prod3.php.
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(b) Market Failure
The Withdraw Rule said that the OLPP Rule failed to meet the
requirements of Executive Order 12866, that the agency ``propose or
adopt a regulation only upon a reasoned determination that the benefits
of the intended regulation justify its costs'' and that there was no
clear market failure for the need for the rule as referenced in
Executive Order 13563. Although it is not necessary for rulemaking, AMS
is reconsidering this rationale in the Withdraw Rule.
In reviewing the available information, AMS does believe a market
failure exists in the organic label. Specifically, consumers have
varying understanding of the degree to which the organic label requires
indoor/outdoor space, health, and welfare provisions for animals used
in organic production. Specifically, space and outdoor access are
required in 7 CFR 205.239(a)(1), but this requirement has been
interpreted by producers and certifying agents in different ways,
allowing producers to provide indoor space and outdoor access through
[[Page 48569]]
several different metrics and methods. While different practices are
not inherently a market failure--and in many markets a sign of healthy
market innovation--in a marketing label, varying practices can create
inefficient outcomes if they allow for producers to benefit from
information failures.
Consumers are increasingly interested in the treatment of animals
raised for food, as evidenced by the proliferation of animal welfare
certification labeling claims. These animal welfare certification
programs have varying requirements, even within individual programs,
creating a range of standards in the marketplace.\21\ For example,
these programs may include standards for pastured, cage-free and free-
range production. High participation rates among organic livestock and
poultry producers in these third-party animal welfare certification
programs indicates that the organic label does not provide the level of
information consumers need to assess whether a specific brand meets
their expectations for animal welfare practices. Consumers who purchase
these doubly certified products would likely not be satisfied with
private animal welfare certification alone because organic
certification addresses other unique attributes they seek, e.g.,
animals receive only organic feed. While the proliferation of ecolabels
may not dilute the value of the organic label, literature shows
consumer confusion may be associated with ecolabel proliferation.\22\
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\21\ The Humane Farm Animal Care program has compiled a table
comparing the requirements of selected third-party animal welfare
certification programs for laying hens. This includes stocking
density and outdoor standards. The comparison table is available at:
https://certifiedhumane.org/how-we-work/fact-sheet/.
\22\ Magali A. Delmas, Olivier Gergaud, Sustainable practices
and product quality: Is there value in eco-label certification? The
case of wine, Ecological Economics, Volume 183, 2021, https://doi.org/10.1016/j.ecolecon.2021.106953.
---------------------------------------------------------------------------
The various production practices used to meet requirements like
outdoor access have allowed producers that use lower-cost and less-
stringent practices to benefit from the same organic labeling and
premium as producers than use more costly or robust practices. Through
public comment and literature reviews outlined in the RIA, AMS has
observed that consumers need to expend additional effort and seek out
additional label information if they wish to purchase animal products
with outdoor access to soil and flora. AMS seeks comment on this
analysis that market failure exists.
(c) Statutory Authority
In 2018, AMS withdrew the OLPP Rule, in part, based on its view
that the OFPA did not provide authority for the OLPP Rule. AMS stated
that the statutory authority for the OLPP Rule was insufficient because
the ``reference in 7 U.S.C. 6509(d)(2) to additional regulatory
standards `for the care' of organically produced livestock does not
encompass stand-alone concerns about animal welfare, but rather is
limited to practices that are similar to those specified by Congress in
the statute''--e.g., restrictions on the use of antibiotics, synthetic
internal parasiticides, administration of medication, and certain feed
substances and practices--``and necessary to meet congressional
objectives outlined in'' section 6501. Id. at 10,776. AMS further
stated that ``standards promulgated pursuant to section 6509(d)(2) and
section 6509(g) must be relevant to ensuring that livestock is
`organically produced.' '' Id. USDA reasoned that dictionary
definitions of the word ``organic'' generally relate to the use of
``artificial chemicals in the growing of plan[t]s and animals for food
and other products,'' and that ``[t]he surrounding provisions in
section 6509 demonstrate that Congress had a similar understanding of
the term `organic.' '' Id. Based on this analysis, AMS concluded that
``the authority granted in section 6509(d)(2) and section 6509(g) for
the Secretary to issue additional [livestock care] regulations fairly
extends only to those [regulations] that . . . relate to the ingestion
or administration of non-organic substances, thus tracking the purposes
of the OFPA[.]'' Id. at 10776-77. AMS determined that ``stand-alone
concerns about animal welfare'' did not meet this standard. Id. at
10,776. In so concluding, USDA explained that it would not ``regulate
outside the boundaries of legislative text,'' id. at 10,776, such that
even if the OFPA were ``silent or ambiguous with respect to the
authority issue,'' it believed that its interpretation was a
``permissible'' one. Id. at 10,777; see also id. at 10,778 (referring
to agency's ``interpretation of the scope of its statutory authority''
as ``permissible'').
This aspect of the Withdraw Rule was in tension with the USDA's
view of its authority in issuing the OLPP Rule, as well as the
regulatory authority USDA has traditionally exercised in this area.
With this rulemaking action, AMS is reconsidering the determination in
the Withdraw Rule. Based on the analysis below, the agency is proposing
to adopt the position that OFPA does provide the requisite authority
for regulations regarding livestock and poultry health care practices
and living conditions, including regulations regarding animal welfare.
OFPA at 7 U.S.C. 6509 addresses practices and materials that may be
used in organic livestock production. Subsection (c) of that provision,
entitled ``Practices,'' requires producers to use organic feed,
prohibits certain types of feed, such as plastic pellets and manure
refeeding, and prohibits the use of growth promoters and hormones.
Subsection (d), entitled ``Health care,'' restricts the use of
subtherapeutic doses of antibiotics, the routine use of synthetic
internal parasiticides, and the administration of medication absent
illness. Id. Sec. 6509(d)(1). In addition, subsection (d)(2) requires
the NOSB to ``recommend to the Secretary standards in addition to those
[specified in subsection (d)(1)] for the care of livestock to ensure
that such livestock is organically produced.'' 7 U.S.C. 6509(d)(2).
While 7 U.S.C. 6509 addresses specific animal production practices
for the organic program, OFPA does not prohibit the Secretary from
adopting additional requirements about practices used in raising
organic livestock. For example, much of Section 6509 dictates what
organic producers ``shall not'' do and contains prohibitions of
specific livestock production practices while not limiting the
Secretary's authority to promulgate regulations about how organic
livestock shall be ``raised.'' See, e.g., 7 U.S.C. 6509(a) (``Any
livestock that is to be slaughtered and sold or labeled as organically
produced shall be raised in accordance with this chapter.''). Indeed,
Section 6509(d)(2) recognizes that the NOSB will recommend standards
``in addition'' to the practices specified in subsection (d) ``for the
care of livestock.''
In addition to the specific authority regarding livestock in
section 6509, Congress also provided the Secretary with broad
rulemaking authority to ``require such other terms and conditions'' for
the organic program that he may deem necessary. 7 U.S.C. 6506(a)(11).
This section, along with section 6509(g)'s charge to the Secretary to
``develop detailed regulations . . . to guide the implementation of the
standards for livestock products provided under this section,'' would
provide ample authority for the detailed requirements in this proposed
rule.
In any event, even if the statutory text were ambiguous, USDA's
interpretation is reasonable because the proposed rule would be
consistent with the purposes of the OFPA. Commenters noted in the OLPP
Rule that it would be reasonable
[[Page 48570]]
for AMS to adopt regulations that address animal welfare as part of
OFPA's overall design.\23\ Consistent with this design, AMS has
promulgated regulations addressing livestock production and living
conditions that affect the health and welfare of livestock, including
measures to avoid disease and illness; provisions about feed;
principles governing housing, pasture conditions, and sanitations
practices; and requirements for access to the outdoors and an the
natural environment.
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\23\ Comments for all OLPP rulemaking can be found at https://www.regulations.gov/docket/AMS-NOP-15-0012/document.
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Over the years since OFPA was enacted, animal welfare has become an
integral part of organic production as evidenced by the hundreds of
thousands of public comments that USDA has received on this topic over
the years as well as an emerging body of research on the motivations
that drive consumers to buy organic livestock products. Several studies
point to animal welfare concerns as significant or even primary drivers
for organic consumers,\24\ and likewise that non-organic consumers
perceive organic livestock to be raised according to higher animal
welfare standards than non-organic livestock.\25\ Literature also
suggest state sponsored ecolabels provide the highest levels of
consumer confidence.\26\
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\24\ Alonso, Marta E.; Gonz[aacute]lez-Monta[ntilde]a,
Jos[eacute] R.; and Lomillos, Juan M. (2020) ``Consumers' Concerns
and Perceptions of Farm Animal Welfare,'' Animals, Vol. 10, pp. 385-
397. McEachern, M.G.; Willock, J. (2004) ``Producers and consumers
of organic meat: A focus on attitudes and motivations.'' British
Food Journal, Vol. 106, pp.534-552.
\25\ Harper, Gemma C; Makatouni, Aikaterini (2002) ``Consumer
perception of organic food production and farm animal welfare.''
British Food Journal; Vol. 104, Iss. 3-5, pp. 287-299.
\26\ Kim Mannemar S[Atilde]nderskov, and Carsten Daugbjerg.
``The State and Consumer Confidence In Eco-labeling: Organic
Labeling In Denmark, Sweden, The United Kingdom and The United
States.'' Agriculture and human values, v. 28, .4 pp. 507-517. doi:
10.1007/s10460-010-9295-5
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Notably, many in the contemporary organic industry do not view
animal welfare as distinct from the concerns expressly reflected in the
statutory text of OFPA. For example, by promoting animal natural
behaviors and practices that maximize the health and welfare of organic
livestock, producers reduce the need for antibiotics and other
medications that section 6509(d) expressly limits.\27\ The Senate
report that accompanied the OFPA legislation set the expectation for
greater specificity in the future for organic livestock standards as
the industry matured: ``More detailed standards are enumerated for crop
production than for livestock production. This reflects the extent of
knowledge and consensus on appropriate organic crop production methods
and materials. With additional research and as more producers enter
into organic livestock production, the Committee expects that USDA,
with the assistance of the National Organic Standards Board will
elaborate on livestock criteria.'' \28\
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\27\ Wemette, M., Safi, A. G., Wolverton, A. K., Beauvais, W.,
Shapiro, M., Moroni, P., . . . & Ivanek, R. (2021). Public
perceptions of antibiotic use on dairy farms in the United States.
Journal of Dairy Science, 104(3), 2807-2821 https://pubmed.ncbi.nlm.nih.gov/33455793/
\28\ Senate Committee on Agriculture, Forestry and Nutrition,
Report of the Committee on Agriculture, Forestry and Nutrition to
Accompany S. 2830 Together with Additional and Minority Views, 101st
Congress, S. REP. NO. 101-357, at 289 (1990).
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In addition, a growing body of research is showing that livestock
and poultry with access to pasture and the outdoors forage and engage
in natural behaviors, which may be positively associated with their
improved health and well-being, be better for the environment, and
result in healthier livestock and poultry \29\ products for human
consumption.\30\ AMS believes that promoting animal welfare through the
practices addressed in the OLPS Rule, and particularly with respect to
outdoor access, would contribute to cycling of resources and ecological
balance values reflected in the regulation.
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\29\ Is Grassfed Meat and Dairy Better for Human and
Environmental Health? Frederick D. Provenza, Scott L. Kronberg, and
Pablo Gregorini, Front Nutr. 2019; 6: 26. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6434678/
\30\ Palupi, Eny; Jayanegara, Anuraga; Ploegera, Angelika and
Kahla, Johannes (2012) ``Comparison of nutritional quality between
conventional and organic dairy products: a meta-analysis,'' Journal
of the Science of Food and Agriculture, Vol. 92, pp. 2774-2781.
https://pubmed.ncbi.nlm.nih.gov/22430502/
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Additionally, as the USDA Office of the Inspector General noted,
certifiers have been inconsistent in their application of livestock
access to outdoor space, a requirement stemming from the 2010 Access to
Pasture Rule. This proposed rule would address the inconsistent
application of the requirement by specifying a minimum size for outdoor
access areas, clarifying circumstances when animals do not require
outdoor access, and specifying records that operations must keep to
disclose their activities, including records of temporary confinement
from the outdoors.
In sum, USDA believes that, as a policy matter, regulation is
warranted. USDA is also proposing to determine, for the reasons
identified above, that it may exercise this authority under the OFPA.
USDA is requesting comment on the identified disagreement over whether
OFPA authorizes regulations on animal welfare and livestock production
practices that are part of this proposed rule.
D. Related Issues
If finalized, this rule would supersede the appeal decision
described below and impose the requirements set out in a final rule
with respect to avian living conditions.
On July 15, 2002, an operation applied for organic certification of
its egg laying operation with a USDA-accredited certifying agent. As
part of the application, the operation's Organic System Plan (OSP)
stated that outdoor access would be provided through covered and
screened ``porches.'' Porches are elevated areas (with solid or slatted
floors) that have access to/from the poultry house and do not typically
provide any means for birds to descend to ground level. The certifying
agent denied certification for failure to provide hens with access to
the outdoors. The certifying agent stated that a porch did not provide
outdoor access as required by the USDA organic regulations. The
operation appealed the Denial of Certification to the AMS Administrator
on October 22, 2002. The Administrator sustained the appeal on October
25, 2002, and directed the certifying agent to grant organic
certification to the operation retroactively to October 21, 2002.
The certifying agent objected to the Administrator's decision and
appealed to the USDA Office of the Administrative Law Judge (ALJ). On
November 4, 2003, the USDA ALJ dismissed the appeal. On December 11,
2003, the certifying agent appealed to the USDA Judicial Officer. On
April 21, 2004, the USDA Judicial Officer dismissed the appeal. On
September 27, 2005, the certifying agent filed an appeal with the U.S.
District Court, District of Massachusetts. On March 30, 2007, the U.S.
District Court granted USDA's motion to dismiss the case (Massachusetts
Independent Certification, Inc. v. Johanns, 486 F.Supp.2d 105).
As a result of these adjudications, use of porches to meet the
requirement in the USDA organic regulations for outdoor access
expanded, and certain producers have settled on production practices
that rely on porches, leading to inconsistencies with producers that
offer animals access to outdoor spaces with soil, vegetation, direct
sunlight, and considerable space per animal.
III. Overview of Proposed Amendments
Below AMS provides a summary and discussion of all proposed changes
in
[[Page 48571]]
the proposed rule. The proposed regulatory text, in its entirety, can
be found at the end of this document. The proposed changes in this rule
are similar to requirements included in the OLPP Rule, except AMS
removed a provision related to natural light in poultry houses that
required an inspector to be able to read and write with lights turned
off on a sunny day (see additional discussion below in the section on
avian living conditions at Sec. 205.241), as well as made edits for
clarity. Below we summarize areas of the proposed rule.
A. Definitions (Sec. 205.2)
This proposed rule would add seventeen new terms to 7 CFR 205.2:
beak trimming, caponization, cattle wattling, de-beaking, de-snooding,
dubbing, indoors or indoor space, mulesing, non-ambulatory, outdoors or
outdoor space, perch, pullet, ritual slaughter, soil, stocking density,
toe clipping, and vegetation. The proposed definitions are discussed
below.
1. Eight New Terms To Define Prohibited Physical Alterations
Current organic regulations permit ``physical alterations'' of
animals ``as needed to promote the animal's welfare and in a manner
that minimizes pain and stress'' (7 CFR 205.238(a)). The proposed rule
would elaborate on this requirement and prohibit some specific types of
physical alterations. These physical alterations would be defined in
the regulations to support common understanding of the meaning of the
terms, as some terms could otherwise be interpreted in various ways
(e.g., ``caponization'' may be referred to as ``castrating'' in some
regions). These alterations are not understood to promote animal
welfare or may be overly painful or stressful without a corresponding
benefit to animal welfare. The prohibition of specific physical
alterations was recommended by the NOSB in 2009.
The following terms are defined in this proposed rule: ``beak
trimming,'' ``caponization,'' ``cattle wattling,'' ``de-beaking,''
``de-snooding,'' ``dubbing,'' ``mulesing,'' and ``toe clipping.''
2. Indoors or Indoor Space
The proposed rule would define ``indoors or indoor space'' as the
space inside of an enclosed building or housing structure that is
available to livestock. The proposed definition includes four examples
of structures that are commonly used in poultry production. These
indoor housing types would be defined, in part, because the proposed
space requirements are based on the housing type. AMS also includes an
indoor space requirement at Sec. 205.241(b)(8)(v) for housing that
does not fit within one of the specific types defined in Sec. 205.2.
While all organic livestock would need to be provided with species-
appropriate shelter, structures providing indoor space would not be
required. For example, beef cattle raised on pasture or range in mild
climates may not be provided with indoor space.
The proposal relies on the term ``enclosed'' to establish if a
space should be considered indoors or outdoors. Under the proposed
definition, the space within the building or structure that can be
enclosed would be considered the indoor space. The proposed rule
defines ``outdoors or outdoor space'' separately (see discussion
below). AMS welcomes public comment on whether the proposed definitions
clearly and adequately distinguish the two types of spaces.
Specifically, AMS seeks comments on whether the proposed
definitions sufficiently address spaces that may be enclosed by fences
and/or overhead netting. The definition of ``indoors or indoor space''
is not intended, as proposed, to include fenced areas outside of a
building or structure or to include fenced outdoor areas that may also
have overhead netting. AMS recognizes that, in most cases, animals are
also ``enclosed'' within outdoor spaces by fencing and/or overhead
netting, and AMS seeks comments on whether the proposed definitions
would allow for consistent implementation of the indoor and outdoor
space requirements.
One of the key considerations for distinguishing indoor space from
outdoor space would be how the livestock are managed in that space,
which may determine whether the space could be defined as indoors,
outdoors, or neither indoors nor outdoors. As an example, a screened-in
and roofed porch to which the (enclosed) birds always have access,
including during temporary confinement events, would be considered
indoor space. That same porch would be considered neither indoors nor
outdoors if the birds do not have continuous access to the space during
temporary confinement events. If the screens were removed from that
porch so that the birds could freely access other outdoor space, then
the porch would be considered outdoor space (see ``Outdoors or outdoor
space ``in section III.A.3). These distinctions would provide
flexibility for producers to work with their certifying agents when
developing their organic system plans (OSPs), yet still aligns with the
position that enclosed porches are not considered to be outdoor space.
The proposed rule would also define the term ``perch'' as a rod- or
branch-type structure above the floor of the house that accommodates
roosting, allowing birds to utilize vertical space in the house.
3. Outdoors or Outdoor Space
The proposed rule would define ``outdoors or outdoor space'' to
clarify the meaning of outdoor areas for mammalian and avian species.
``Outdoors or outdoor space'' would be defined as any area outside of
an enclosed building or enclosed housing structure, but including
roofed areas that are not enclosed. For example, a screened poultry
``porch,'' enclosed by wire on the sides, would not be considered
outdoors. In this definition, ``outdoors or outdoor space'' would
include all of the non-enclosed space encompassing soil-based areas
such as pastures, pens, or sacrifice lots; hardened surface areas such
as feedlots, walkways, or loafing sheds; and areas providing outdoor
shelter such as windbreaks and shade structures. For avian species, the
proposed definition includes pasture pens, which are floorless pens
that are moved regularly and provide direct access to soil and
vegetation. These pens (also referred to as ``chicken tractors'') may
consist of solid roofing over all or part of the pen to provide shelter
for the birds.
The outdoor space would have species-specific requirements. For
example, this proposed rule sets the requirement that 50 percent of the
outdoor space for avian species must be soil-based and that the soil be
maximally covered with vegetation appropriate to the specific local
conditions. Depending on the outdoor space and local conditions, a
producer could rotate poultry around outdoor areas to allow vegetation
to recover, or a producer might need to periodically reseed an outdoor
area. Vegetative cover would need to be maintained in a manner that
would not provide harborage for rodents and other pests. For additional
description of the proposed requirements, see section below ``Avian
Living Conditions.''
The proposed rule would define ``soil'' as the outermost layer of
the earth comprised of minerals, water, air, organic matter, fungi, and
bacteria in which plants may grow roots. Soil would be defined to
distinguish these areas from impervious areas such as concrete or
pavement. Soil may consist of bare ground but is generally covered with
vegetation. As described in the
[[Page 48572]]
mammalian and avian living condition sections, maximum vegetative cover
should be maintained on the soil as appropriate for the species,
season, geography, and climate. Designated sacrifice areas or dry lots
would be permitted. Outdoor areas would need to be maintained in a
manner that maintains or improves natural resources, including soil and
water quality (7 CFR 205.200). Temporary confinement may be provided to
protect soil and water quality.
To assist with the mitigation of biosecurity and predation risks,
fencing, netting, or other materials would be permitted over all or
part of the outdoor areas to prevent predators and other wild birds
from entering the outdoor area. Many producers also use portable or
permanent shade structures throughout their pastures. Structures for
shade would also be permitted in the outdoor space. For example, the
area within a stand-alone, roofed shade structure could be included as
outdoor space area. Areas under the eaves or the awning of a building,
with a roof attached to the outer wall of the indoor space structure,
can also be considered outdoors. While these areas may have solid roofs
overhead, they can offer the same quality of outdoor space as uncovered
outdoor areas, including natural ventilation/open air, direct sunlight,
soil, vegetation, and open access to uncovered areas beyond.
4. Non-ambulatory
The proposed rule would add the term ``non-ambulatory'' and
references the definition in 9 CFR 309.2(b). FSIS defines non-
ambulatory as ``livestock that cannot rise from a recumbent position or
that cannot walk, including, but not limited to, those with broken
appendages, severed tendons or ligaments, nerve paralysis, fractured
vertebral column, or metabolic conditions.'' Any non-ambulatory
livestock on organic farms would need to be medically treated, even if
the treatment causes the livestock to lose organic status or be
humanely euthanized.
5. Pullets
AMS modified the definition of pullets, which is used by the AMS
Livestock, Poultry, and Seed Program, to include species other than
chickens. This proposed rule would define ``pullets'' as female
chickens or other avian species being raised for egg production that
have not yet started to lay eggs. Once avian females begin laying eggs,
AMS refers to them as layers. The term ``pullets'' would not describe
young broilers used for meat production.
6. Stocking Density
The proposed rule would define ``stocking density'' as the weight
of animals on a given area or unit of land. This term is used to
describe the indoor and outdoor space requirements for organic
livestock. For example, the proposed rule would establish maximum
stocking densities for avian species, and the producer would need to
ensure that the area provided is large enough to not exceed the
established maximum stocking density when all birds in the flock are on
the given area (i.e., indoors) or unit of land.
7. Ritual Slaughter
The proposed rule would add the term ``ritual slaughter'' and
references the definition in the Humane Methods of Slaughter Act (7
U.S.C. 1902(b)). This Act defines ritual slaughter as ``slaughtering in
accordance with the ritual requirements of any religious faith that
prescribes a method of slaughter whereby the animal suffers loss of
consciousness by anemia of the brain caused by the simultaneous and
instantaneous severance of the carotid arteries with a sharp instrument
and handling in connection with such slaughtering.''
Organic livestock and handling operations may use ritual slaughter
to convert their livestock to meat or poultry without loss of organic
status.
8. Vegetation
The proposed rule would add the term ``vegetation'' and defines it
as living plant matter that is anchored in the soil by roots and
provides ground cover. This term applies to the requirement for
vegetation in outdoor areas, which is central to protecting soil and
water quality as well as providing for livestock to exhibit their
natural behaviors. The roots of vegetation provide stability and
structure to soil. Vegetation helps water soak into the soil rather
than running off, which can cause erosion. Livestock also have natural
behaviors of grazing, rooting, nesting, etc., which require vegetation.
B. Livestock Care and Production Practices Standard (Sec. 205.238)
AMS proposes to amend current provisions and add new provisions to
the organic livestock care and production practice standards. The
proposed amendment to Sec. 205.238(a)(2) specifies that the
sufficiency of the feed ration be demonstrated by appropriate body
condition of the livestock. Livestock producers would be required to
monitor their animals to ensure body condition is being maintained. In
addition, certifying agents would need to verify the nutritional
adequacy of the animals' diet by assessing the body condition of
organic livestock during inspection. Suitable body condition varies
between species, between breeds, and between production types. For
example, a suitable condition for dairy cattle may be considered too
thin in beef cattle.
AMS proposes to revise Sec. 205.238(a)(5) to clarify the
conditions under which physical alterations may be performed on
livestock. Physical alterations may only be performed for an animal's
welfare, identification, or safety. Alterations must be done at a
reasonably young age with minimal pain or stress to the animal and may
only be performed by an individual who can competently perform the
procedure. Competency in performing physical alterations may be
demonstrated by appropriate training or experience of the individual.
A 2009 NOSB recommendation allowed teeth clipping and tail docking
in piglets, but this revision was retracted in the 2011 NOSB
recommendation.\31\ This proposed rule would add Sec.
205.238(a)(5)(i), which would restrict needle teeth clipping and tail
docking in pigs. These two types of physical alterations may not be
performed on a routine basis but may be performed as needed to improve
livestock welfare, as listed below.
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\31\ Available at https://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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Needle teeth clipping and tail docking in pigs may only be
performed in response to documented animal welfare reasons after
alternative steps to prevent harm fail. Teeth clipping, if performed,
is limited to the top third of each needle tooth. For example, an
organic swine producer who clipped needle teeth or performed tail
docking would need to document excessive needle teeth scarring on the
underline of a sow or piglets, or document tail biting on piglets in
the litter. Swine producers would also need to document that
alternative methods to prevent scarring had failed. Such alternative
methods may include, but are not limited to, cross-fostering prior to
teat fidelity across litters to minimize weight variation, providing
sufficient enrichment materials, and providing vegetation for rooting.
AMS proposes to add a new Sec. 205.238(a)(5)(ii) to list the
physical alterations that would be prohibited in an organic operation.
Based on the 2011 NOSB recommendations, the following
[[Page 48573]]
physical alterations to avian species would be prohibited: de-beaking,
de-snooding, caponization, dubbing, toe clipping of chickens, toe
clipping of turkeys unless with infra-red at hatchery, and beak
clipping after 10 days of age. In addition, the following physical
alterations to mammalian species would be prohibited: tail docking of
cattle, wattling of cattle, face branding of cattle, tail docking of
sheep shorter than the distal end of the caudal fold, and mulesing of
sheep.
AMS proposes to add new requirements at Sec. 205.238(a)(7) to
specify that surgical procedures on livestock to treat an illness must
be done in a manner that minimizes pain, stress, and suffering. The
NOSB recommended that all surgical procedures for livestock be done
with the use of anesthetics, analgesics, and sedatives. USDA organic
regulations require that all surgical procedures for treatment of
disease be undertaken in a manner that employs best management
practices in order to minimize pain, stress, and suffering, and only
with the use of anesthetics, analgesics, and sedatives as listed in
Sec. 205.603(a) and (b).
AMS is proposing a new Sec. 205.238(a)(8) that would require
organic producers to actively monitor and document lameness within the
herd or flock. Lameness can be an issue in various livestock species,
including broilers, sheep, and dairy cattle. This proposed requirement
for producers to create a plan for monitoring and recording instances
of lameness in the organic system plan would enable organic livestock
producers to identify and address potential problems among animals
before they become widespread. In addition, documentation of lameness
would provide an auditable trail for certifying agents to verify that
livestock producers are monitoring these potential causes of animal
suffering.
AMS proposes to add Sec. 205.238(b) to state that synthetic
medications allowed under Sec. 205.603 may be administered to
alleviate pain or suffering. In addition, synthetic medications allowed
under Sec. 205.603 may be administered when preventive practices and
veterinary biologics are inadequate to prevent sickness.
AMS proposes to amend Sec. 205.238(c)(1) to clarify that milk from
an animal treated with an allowed substance in Sec. 205.603, which has
a withholding time, may not be sold, labeled, or represented as organic
during that withholding time. However, organic animals or breeder stock
may continue to provide milk for organic calves on the same operation
during the withholding time. This is consistent with the 2010 NOSB
recommendation that a calf nursing a cow treated topically with
lidocaine or other approved synthetic with a withdrawal time would not
lose organic status. For example, if an organic beef cow was nursing
her organic calf and the cow became injured, her calf could continue to
nurse the cow even during the seven-day withholding period if lidocaine
was used to minimize pain and stress during her treatment. In this
scenario, the calf would not lose organic status.
AMS proposes to revise Sec. 205.238(c)(2) to clarify that other
veterinary biologics, in addition to vaccines, would be exempt from the
prohibition on administering animal drugs in the absence of illness.
This change would be consistent with the definition for biologics in
Sec. 205.2 and supports Sec. 205.238(a)(6), which identifies the use
of vaccines and other veterinary biologics as a required practice to
improve animal health.
AMS proposes to revise Sec. 205.238(c)(3) to clarify that organic
livestock producers would be prohibited from administering synthetic or
non-synthetic hormones to promote growth, or for production or
reproductive purposes. Hormones listed in Sec. 205.603 could be used
as medical treatments (e.g., oxytocin). Stakeholders have noted that
the USDA organic regulations fail to address use of hormones to
stimulate production or for reproductive purposes. AMS is not aware of
any hormones used by organic producers for these purposes (and none are
included on the National List for these uses). The proposed changes
would maintain the status quo; however, the proposed changes affirm and
support the current prohibition on hormones in organic production. This
addition would clarify that all hormones--unless used as medical
treatments--are prohibited in organic production.
AMS proposes to add a new Sec. 205.238(c)(8) that would prohibit
organic livestock producers from withholding treatment designed to
minimize pain and suffering for injured, diseased, or sick animals.
Injured, diseased, or sick animals may be treated with any allowed
natural substance or synthetic medication that appears on the National
List. However, if no appropriate medication is allowed for organic
production, organic livestock producers would be required to administer
treatment even if the animals subsequently lose their organic status.
Furthermore, as recommended by the American Veterinary Medical
Association, some forms of euthanasia may be an acceptable practice for
minimizing pain and suffering.
AMS proposes to add a new Sec. 205.238(c)(9) that would require
livestock producers to identify and record treatment of sick and
injured animals in animal health records. Early identification can lead
to more effective prevention or treatment, which would enhance the
overall health of the livestock on that operation.
AMS proposes to add a new Sec. 205.238(c)(10) that would prohibit
the practice of forced molting in poultry. Section 205.238(a)(2) of
this proposed rule requires a nutritionally sufficient feed ration for
livestock. Forced molting, a practice in which feed is severely
restricted for a period of time in order to rejuvenate egg production,
runs counter to this proposed addition. The proposed new Sec.
205.238(c)(10) would be consistent with the fall 2009 NOSB
recommendation.\32\
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\32\ Available at https://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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AMS proposes to add a new Sec. 205.238(d) that would require
organic livestock operations to have a plan to minimize internal
parasite problems in livestock. The plan to minimize internal parasites
must include preventive measures such as pasture management, fecal
monitoring, and emergency measures in the event of a parasite outbreak.
Livestock producers would also be required to work with their
certifying agents to approve a parasite control plan.
In certain cases, livestock may suffer from an illness or injury
where recovery is unlikely. AMS proposes to add a new Sec. 205.238(e)
to address euthanasia based on the 2011 NOSB recommendations. Proposed
Sec. 205.238(e)(1) would require livestock producers to maintain
written plans for euthanizing sick or injured livestock. Proposed Sec.
205.238(e)(2) would prohibit the following methods of euthanasia:
suffocation, manual blows to the head by blunt instrument or manual
blunt force trauma, and use of equipment that crushes the neck (e.g.,
killing pliers or Burdizzo clamps). In the event of an emergency
situation where a local, State, or Federal government agency requires
the use of a non-organic method of euthanasia, organic livestock
operations would not lose organic certification or face other penalties
for the use of non-organic methods of euthanasia. The NOSB recommended
listing the allowable methods of euthanasia, however, given that new
humane euthanasia methods may emerge, AMS does not intend to discourage
producers from using these techniques. AMS proposes to direct
[[Page 48574]]
organic livestock producers to use methods of euthanasia consistent
with the most recent editions of the American Veterinary Medical
Association (AVMA) Guidelines for the Euthanasia of Animals.\33\ The
list of specifically prohibited methods could be amended to include
other techniques, if needed, through future rulemaking. AMS also
proposes to add a new Sec. 205.238(e)(3), which would require organic
producers to examine livestock to ensure they are dead following a
euthanasia procedure.
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\33\ https://www.avma.org/resources-tools/avma-policies/avma-guidelines-euthanasia-animals.
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C. Mammalian Livestock Living Conditions (Sec. 205.239)
AMS is proposing to separate the mammalian living conditions
section from avian living conditions section due to the different
physiology and husbandry practices for birds and mammals. As a result,
AMS proposes revising the title of Sec. 205.239 from ``Livestock
Living Conditions'' to ``Mammalian Livestock Living Conditions.'' By
creating clear living condition requirements for mammalian livestock
and avian livestock, organic operations and certifying agents are
better equipped to implement the USDA organic regulations in a
consistent manner. Information regarding avian living conditions is
addressed in new Sec. 205.241.
AMS proposes to revise Sec. 205.239(a)(1) to remove the
requirement that all ruminant livestock must be able to feed
simultaneously. One method of feeding livestock, including ruminants,
is the use of a self-feeder or a creep-feeder. With creep-feeding and
self-feeding, feed is accessible to all livestock at all times though
they may not feed at the exact same time. Allowing self-feeding and
creep-feeding systems would provide organic ruminant producers with
more flexibility and options to manage their farm and livestock in
farm-specific methods.
AMS proposes to maintain the current Sec. 205.239(a)(3), which
requires the use of appropriate, clean, dry bedding. If roughages are
used as bedding, they must be organically produced and handled by
certified operations, with the exception of transitioning dairy
producers that may provide crops and forage from land included in the
organic system plan of the dairy farm that is in the third year of
organic management during the 12-month period immediately prior to the
sale of organic milk and milk products (7 CFR 205.236(a)(2)(i)).
AMS proposes to revise Sec. 205.239(a)(4)(i) to specify that
shelter must be designed to accommodate natural behaviors over every
24-hour period. Shelter must have sufficient space for the animals to
lie down, stand up, and fully stretch their limbs and allow livestock
to express their normal patterns of behavior over a 24-hour period. AMS
recognizes that there are times when animals will be constrained for
livestock handling or management purposes. An animal may be limited in
its freedom of movement during parts of the day for a variety of
reasons, including milking, feeding, or other handling purposes.
Livestock may be constrained for limited amounts of time to ensure
hygiene and wellbeing of the animals. Stalls for organic dairy cattle
are often designed to limit the animals from turning to the sides. This
stall design directs manure and urine into a collection system to
prevent mastitis and maintain low somatic cell counts in the milk.
Mammalian livestock may be housed for part of the day in stalls as
described in the organic system plan as long as they have complete
freedom of movement during significant parts of the day for grazing,
loafing, and exhibiting natural social behavior. This allowance does
not permit the use of gestation crates or other confinement systems in
which swine would be housed individually in stalls for months at a
time. However, if livestock are temporarily confined indoors as
permitted in Sec. 205.239(b), livestock must be able to move around,
turn around, and stretch their limbs indoors for part of the day.
Operations would need to fully describe the use of any stalls, methods
used in stall management, and how livestock are able to express their
normal patterns of behavior.
AMS proposes to add Sec. 205.239(a)(4)(iv) to set requirements for
an indoor space for bedding and resting that is sufficiently large and
comfortable to keep livestock clean, dry, and free of lesions, with the
exception of animals raised on pasture or range. AMS recognizes that
while livestock do need to be provided with shelter (defined in Sec.
205.2), livestock on pasture or range may not have access to
traditional barns or bedded areas and therefore may not be provided
with indoor space. These types of operations may use windbreaks or
other methods to provide shelter for the livestock. Additionally, not
all manufactured shelters are designed to hold bedding; for example, a
shelter designed to provide shade may be portable and thus incompatible
with holding bedding. Operations need to describe in their OSP how they
will provide shelter to their livestock in a manner suitable for the
species, stage of production, and environment.
AMS proposes to add new requirements in Sec. 205.239(a)(7)
concerning the individual housing of dairy young stock. Section
205.239(a)(7) would allow for the individual housing of animals until
the weaning process is complete but no longer than six months, as long
as the animals have sufficient room to turn around, lie down, stretch
out while lying down, get up, rest, and groom themselves. In addition,
the individual housing of young stock would need to be designed so that
animals can see, smell, and hear other animals.
AMS proposes to add three new provisions in Sec. 205.239(a)(8) to
require the group housing of swine, with three listed exceptions: (1)
Sec. 205.239(a)(8)(i) would allow for sows to be individually housed
at farrowing and during the suckling period; (2) Sec.
205.239(a)(8)(ii) would allow for boars to be individually housed to
reduce the likelihood of fights and injuries; and (3) Sec.
205.239(a)(8)(iii) would allow for swine to be individually housed
after multiple documented instances of aggression or to allow an
individual pig to recover from a documented illness.
AMS proposes to add two new provisions in Sec. 205.239(a)(9) and
(10) concerning swine housing. Section 205.239(a)(9) would prohibit the
use of flat decks or piglet cages. This provision would prohibit the
stacking of piglets in flat decks in multiple layers. AMS is not aware
of any organic producers currently using these methods for organic
production. AMS is proposing specific language to prohibit the
practices and affirm that these systems do not and cannot meet the
living conditions requirements of the organic regulations. In addition,
Sec. 205.239(a)(10) would require both indoor and outdoor areas for
swine to include space for the livestock to root. Rooting is a natural
behavior that must be accommodated by organic swine producers and could
be done in soil, deep packed straw, or other materials. Organic swine
producers would also be required to update their OSP to address how
swine will be allowed to root during temporary confinement periods.
AMS proposes to add a new provision in Sec. 205.239(a)(11) to
further clarify the use of barns or other structures with stalls. If
indoor shelter is provided by a structure with stalls, this structure
must have a sufficient number of stalls to allow for the natural
behaviors of the animals. A cage would not be
[[Page 48575]]
considered a stall. AMS is aware that some operations use systems that
robotically feed animals that take turns entering an individual feeding
stall. AMS does not intend to prohibit such systems since they could
enhance the wellbeing of organic livestock. Therefore, the proposed
Sec. 205.239(a)(11) would provide an exception for this type of
system: more animals than feeding stalls may be allowed for group-
housed swine as long as all animals are fed routinely every day. AMS
also proposes to add specific allowances for a variety of cattle barns,
including tie stall barns, stanchion barns, and free stall barns.
However, while these barns can all be suitable for organic
certification systems, the specific procedures used by producers with
these barns may be incompatible with organic production. For example,
it would not be permitted for a producer to leave an animal tied up for
24 hours per day in a tie stall barn.
AMS proposes to add a new requirement for outdoor access in Sec.
205.239(a)(12). Organic livestock would be required to have
unencumbered access to the outdoors year-round, unless temporary
confinement is justified under a specific reason described in the USDA
organic regulations (e.g., nighttime confinement for protection from
predators). When the outdoor space includes soil, then maximal
vegetative cover must be maintained as appropriate for the season,
climate, geography, species of livestock, and stage of production.
Ruminants must have access to graze during the growing season. Swine
are not required to have access to the soil or vegetation; however, if
a swine producer chooses to allow swine to have access to the soil as a
rooting material, then the producer must maintain as much vegetative
cover as possible given the natural behavior of swine to root, the
season, and local environmental conditions.
AMS proposes to revise Sec. 205.239(b)(7) to clarify the exemption
for temporary confinement for the purpose of breeding livestock.
Livestock may only be confined for the time required for natural or
artificial breeding. A group of livestock may be confined before the
procedures and while the various individuals are bred; afterward, the
group shall be returned to living spaces that allow outdoor access.
This provision would prohibit livestock from being confined indoors to
observe estrus, or until they are determined to be pregnant. Proposed
Sec. 205.239(c)(1) further describes the time when ruminants may be
denied access to pasture, but not access to the outdoors, before and
after a breeding attempt.
AMS proposes to revise Sec. 205.239(b)(8) to clarify the temporary
confinement exception for youth livestock projects. Because many youth
livestock projects include the sale of market animals, organic animals
that were under continuous organic management may be sold as organic
animals at youth fairs, even if the sales facility is not certified
organic. Thus, the proposed revision includes an exemption to the
proposed Sec. 205.239(b)(6) requirement that a livestock sales
facility be certified as an organic operation. As an example, if a
youth exhibition and sale is held at a livestock sales facility that is
not certified organic, the livestock may be temporarily confined
indoors during the event. In this case, the youth could still sell the
organic animal as an organic animal, provided all other requirements
for the organic management of livestock are met. Otherwise, non-
certified sales facilities, such as auction barns or fairgrounds, may
not sell or represent livestock as organic. AMS proposes to include
this exception to encourage the next generation of organic farmers.
AMS proposes to revise Sec. 205.239(d) to reflect the similar
proposed changes in Sec. 205.239(a)(1). Use of self-feeding and creep-
feeding would be allowed to provide ruminants with access to feed
continuously over a 24-hour period.
D. Avian Living Conditions (Sec. 205.241)
AMS is proposing to add a new section to the organic regulations,
Sec. 205.241, entitled ``Avian living conditions,'' which includes
requirements for all organic avian (``bird'' or ``poultry'') species,
including but not limited to, chickens, turkeys, geese, quail,
pheasant, and any other species that are raised for organic eggs,
organic meat, or other organic agricultural products.
Section 205.241(a) proposes to establish general requirements for
organic poultry production. These general principles are further
clarified in Sec. 205.241(b), (c), and (d). Section 205.241(a) would
require organic poultry operations to establish and maintain living
conditions that accommodate the wellbeing and natural behaviors of the
birds. These living conditions include: year-round access to the
outdoors, soil, shade, shelter, exercise areas, fresh air, direct
sunlight, clean water for drinking, materials for dust bathing, and
adequate space to escape aggressive behaviors. The living conditions
provided should be appropriate to the species, its stage of life, the
climate, and the environment. These proposed requirements are based
upon a 2009 NOSB recommendation \34\ and are largely identical to
previously established livestock requirements at Sec. 205.239(a)(1),
although AMS proposes to add additional requirements, including
materials for dust bathing and adequate outdoor space to escape
aggressive behaviors. These additional requirements are necessary to
provide for the basic needs of poultry.
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\34\ 2009 NOSB Sunset Recommendation: https://www.ams.usda.gov/sites/default/files/media/NOP%20Final%20Sunset%20Rec%20Animal%20Welfare.pdf.
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Section 205.241(b) proposes to specify the indoor space
requirements for avian species. This proposed provision would require
operations to provide shelter to birds, and if an operation provides
indoor space to birds, this space would need to meet the proposed
indoor space requirements. Proposed Sec. 205.241(b)(1) would require
that indoor space be sufficiently spacious to allow all birds to move
freely, stretch their wings, stand normally, and engage in natural
behaviors. Cages or environments that limit free movement within the
indoor space would be prohibited. In addition, the indoor space must
allow birds to engage in natural behaviors such as dust bathing,
scratching, and perching. These proposed requirements are adopted from
a 2009 NOSB recommendation and modify previously established
requirements for organic livestock at Sec. 205.239(a)(4)(i) that
required, ``shelter designed to allow for. . .natural maintenance,
comfort behaviors, and opportunity to exercise.''
AMS proposes to add a new Sec. 205.241(b)(2) to require producers
to monitor ammonia levels at least monthly and implement practices to
maintain ammonia levels below 10 ppm. Should ammonia levels exceed 10
ppm, producers would be required to implement additional practices and
additional monitoring to reduce ammonia levels below 10 ppm. Ammonia
levels above 25 ppm would not comply with the requirements. Ammonia is
a natural breakdown product of manure from livestock and is harmful to
birds when inhaled, especially at concentrations above 25 ppm.\35\
Inhalation of high levels of ammonia has a negative impact on welfare
in poultry, causing irritation and inflammation, as well as
contributing to negative production outcomes like reduced growth. In
most
[[Page 48576]]
cases, high levels of ammonia indicate that litter is damp, or litter
management practices require modification.
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\35\ ``Ammonia production in the poultry houses and its harmful
effects'' IU Sheikh, SS Nissa, Bushra Zaffer, KH Bulbul, AH Akand,
HA Ahmed, Dilruba Hasin, Isfaqul Hussain and SA Hussain,
International Journal of Veterinary Sciences and Animal Husbandry,
3(4): 30-33, 2018.
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Proposed Sec. 205.241(b)(3) would clarify the lighting
requirements for organic layers and fully feathered birds. Organic
producers could use artificial light for up to 16 hours per day (24-
hour period). The 16-hour period would need to be calculated as a
single continuous time period. Artificial light would need to be
lowered gradually to encourage hens to move to perches or otherwise
settle for the night. AMS is not including a requirement from the 2017
OLPP final rule (subsequently withdrawn in 2018) that required,
``Natural light must be sufficient indoors on sunny days so that an
inspector can read and write when all lights are turned off.'' AMS
determined that it would not be feasible for inspectors to verify a
producer's compliance with this requirement, so the requirement was
removed from this proposed rule.
Proposed Sec. 205.241(b)(4) would require exit areas, or doors, on
shelters to be designed in such a way that the birds could easily
access both indoor and outdoor areas. Access and utilization of outdoor
areas is a core principle of organic production systems. Organic avian
systems must be designed so birds have ready access to outdoor areas
and so birds are able to return indoors to roost in the evening.
Producers must provide exit doors and door sizes to enable all birds to
access outdoor and indoor areas. Door size and appropriate placement
must provide meaningful outdoor access to the birds. This section also
notes that shell egg producers may be subject to FDA requirements in 21
CFR part 118 intended to prevent Salmonella Enteritidis (SE).
Specifically, these FDA regulations require producers to maintain
biosecurity measures that prevent stray poultry, wild birds, cats, and
other animals from entering poultry houses. AMS invites comments on how
organic producers provide exit doors for meaningful outdoor access
while simultaneously preventing animals (that could introduce or
transfer SE) from entering poultry houses.
Proposed Sec. 205.241(b)(5) would require perches for chicken
layers at a rate of six inches per bird for all housing, with the
exception of aviary housing. Perch space could include the alighting
rail in front of nest boxes. Perches would not be required for
broilers, meat birds, or layers of non-Gallus gallus species. Aviary
housing would need to provide 6 inches of perch space for only 55
percent of the flock (i.e., 3.3 inches of perch for each bird in flock)
because birds in aviary housing are also able to escape aggressive
behavior by moving between tiers in the house. These proposed
requirements are adopted from 2009 and 2011 NOSB recommendations.
Proposed Sec. 205.241(b)(6) would specify indoor requirements to
allow for certain natural behaviors. Indoor space would be required to
include areas that allow for scratching and dust bathing. Litter (i.e.,
bedding), such as wood shavings or straw, must also be provided
indoors. Manure excreted by birds in a poultry house alone, without
additional litter, would not be sufficient to meet this requirement.
The proposed provisions would also require that litter be maintained in
a dry manner, since wet litter can lead to a variety of problems for
birds, including excess ammonia, lameness, and pest problems.\36\ High
moisture content in poultry litter can cause negative health and
welfare outcomes, including foot pad dermatitis \37\ and increased
populations of house fly leading to disease in the birds.\38\ Wet
litter also promotes bacterial growth, which can further lead to
disease and negative health outcomes in birds.\39\ Litter may be topped
off when needed to maintain sufficient dryness. The proposed
requirements described in Sec. 205.241(b)(6) are adopted from 2009 and
2011 NOSB recommendations.
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\36\ ``Broiler Litter: Odor and Moisture Concerns'', Tom Tabler,
Yi Liang, Jonathan Moon, and Jessica Wells. Mississippi State
University Extension, Publication: P3515, 2020.
\37\ ``Wet litter not only induces footpad dermatitis but also
reduces overall welfare, technical performance, and carcass yield in
broiler chickens'', Ingrid C. de Jong, H.Gunnink and J.van Harn,
Journal of Applied Poultry Research, 23(1): 51-58, 2014.
\38\ ``Pests in Poultry, Poultry Product-Borne Infection and
Future Precautions'', Hongshun Yang, Shuvra K. Dey, Robert Buchanan,
and Debabrata, Biswas Practical Food Safety: Contemporary Issues and
Future Directions, 1, 2014.
\39\ ``Broiler Litter: Odor and Moisture Concerns'', Tom Tabler,
Yi Liang, Jonathan Moon, and Jessica Wells, Mississippi State
University Extension, Publication: P352020.
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Proposed Sec. 205.241(b)(7) would add specific flooring
requirements for indoor avian housing with slatted/mesh floors. These
houses must provide at least 30 percent solid flooring to allow birds
indoors to engage in natural behaviors, including scratching and dust
bathing, without crowding. This proposed requirement is adopted from a
2009 NOSB recommendation.
Sections 205.241(b)(8), 205.241(b)(9), and 205.241(b)(10) propose
minimum indoor space requirements for different types of housing. These
are minimum standards, and organic producers may choose to provide more
indoor space than required. The indoor space requirements would apply
to chickens (Gallus gallus), with layer requirements at Sec.
205.241(b)(8), pullet requirements at Sec. 205.241(b)(9), and broiler
requirements at Sec. 205.241(b)(10). The proposed indoor space
requirements for layers vary by the type of housing provided. The types
of housing are further defined in Sec. 205.2 and include: mobile
housing, aviary housing, slatted/mesh floor housing, and floor litter
housing. For housing that does not fit into any of these defined types,
the proposed indoor space requirement is no more than 2.25 pounds of
hen per square foot. Pasture pens that are moved regularly and provide
direct access to soil and vegetation would not be considered indoors
(see definition of ``outdoors'' in Sec. 205.2). These proposed
requirements are adapted from 2009 and 2011 NOSB recommendations, and
made in consideration of third-party animal welfare standards.
AMS proposes to establish indoor space requirements for common
types of poultry housing. Less indoor space will be required per bird
in houses that provide more access to vertical space in the house, as
birds have more room to move around (e.g., aviary and slatted/mesh
floor housing). Housing where birds have more limited access to
vertical space (e.g., floor litter housing) must provide more indoor
space per bird. AMS proposes to allow higher stocking densities in
mobile housing, as birds managed in these systems spend more time
outdoors, and mobile housing must be relatively small and light, as it
is moved frequently.
AMS is using the unit of measurement as ``pounds per square foot''
to establish space requirements. In other words, the minimum space that
must be provided depends on the average weight of birds at that time.
All weight references proposed in Sec. 205.241(b) and (c) refer to the
weight of live birds and not the weight of processed birds, for
example. By stating the requirement in pounds per square foot, the
application of the space requirement is more consistent between breeds,
where the average weight per bird can vary significantly. This unit of
measurement (pounds per square foot) was recommended by the NOSB in
2011 for pullets and broilers, and AMS proposes to extend this same
unit of measurement to layers. This use of measurement allows birds to
receive similar spacing densities physically no matter the breed's
size. Under this proposed rule, larger breeds (i.e., heavier on a per-
bird basis) must be provided with more indoor space than smaller birds,
on a per bird basis. For example, Rhode Island Red birds are heavier
than White Leghorns or ISA
[[Page 48577]]
Browns, and thus cannot be stocked as densely, in terms of number of
birds per unit area.
An example of how space requirements can be calculated is as
follows: a layer in a floor litter housing system that is 32 weeks of
age and weighs 4.3 pounds must be provided with 1.43 square feet per
bird (equivalent to 3.0 pounds of bird for each one square foot);
however, at 80 weeks of age and a weight of 4.5 pounds, each bird must
be provided with 1.5 square feet per bird (3.0 pounds of bird for each
one square foot). In other words, for each 10,000 square feet, a
producer could stock 6,993 birds at 32 weeks of age (bird weight of 4.3
pounds) but only 6,667 birds at 80 weeks of age (bird weight of 4.5
pounds). Although older and heavier birds require more space, natural
mortalities over time may result in compliance with the space
requirements over a production cycle.
To calculate the weight of birds, an average weight may be
established for the flock by taking weights of a representative sample
of the flock. The requirement is not specific to each individual bird
in a flock. AMS understands that many producers already monitor and
track bird weight closely during the production cycle to monitor bird
development and health and calculate feed requirements. However, if
weight is not monitored by a producer, the producer will need to
establish the weight of birds based on objective criteria to determine
the space required indoors and outdoors. Certifiers may also weigh
birds at inspections to verify compliance with the requirements.
Proposed Sec. 205.241(b)(11) specifies how the area of the indoor
space is calculated. Indoor space must be calculated to ensure that
birds are provided with adequate indoor space to meet the proposed
space requirements at Sec. 205.241(b)(8) through (10). The total size
of the indoor space is calculated by including all flat areas in a
house, excluding nest boxes. Elevated round perches, for example, are
not flat areas and could not be included as indoor space. Nest boxes
are excluded from the calculation, as they are distinct from useable
floor areas of the house where birds can move around freely. This
aligns with the 2009 and 2011 NOSB recommendations.
Proposed Sec. 205.241(b)(12) clarifies that indoor space may
include enclosed porches and lean-to type structures (e.g., screened
in, roofed) provided that the birds always have access to the space,
including during temporary confinement events. The same porch must not
be counted as indoor space if the birds do not have continued access to
the space during temporary confinement events. This would ensure that
enclosed porches that are not fully accessible to birds are not counted
in indoor space calculations.
Proposed Sec. 205.241(c) establishes the requirements for outdoor
areas for organic avian species, including the amount of outdoor space
that must be provided to organic avian species. The requirements of
proposed Sec. 205.241(c) are adapted from previously established
requirements at Sec. 205.239, 2009 and 2011 NOSB recommendations, and
third-party animal welfare organization standards. Proposed Sec.
205.241(c)(1) requires that the outdoor space be designed to promote
and encourage outdoor access for all birds. Producers are required to
provide access to the outdoors at an early age. This section requires
door spacing to be designed to promote and encourage outdoor access and
requires outdoor access to be provided on a daily basis (further
described at proposed Sec. 205.241(b)(4)). Outdoor access may only be
temporarily restricted in accordance with proposed Sec. 205.241(d).
Proposed Sec. 205.241(c)(2) would require outdoor areas for
poultry to have a minimum of 50 percent soil and that the soil portion
of the outdoor area include maximal vegetative cover. Vegetative cover
must be maintained in a manner that does not provide harborage for
rodents and other pests. For example, a producer may mow vegetation to
ensure that tall vegetation does not provide harborage for pests. A
maximum of 50 percent of the outdoor area may be gravel, concrete, or
surfaces other than soil or soil with vegetative cover. Maximal
vegetation would be required, as vegetation protects soil and water
quality and allows birds to engage in natural behaviors, including
foraging, pecking, and scratching. The amount of vegetation present
would depend on the season, climate, geography, species, and the stage
of production.
Proposed Sec. 205.241(c)(3) clarifies how producers may provide
shade to meet the general requirements of proposed Sec. 205.241(a).
Shade may be provided in outdoor areas by trees, shade structures, or
other appropriate objects. This section is specific to shade in outdoor
areas; it would not permit structures that do not meet the definition
of ``outdoors'' (Sec. 205.2) to be included in calculations of outdoor
space.
This proposed rule would require organic layer producers to provide
at least one square foot of outdoor space for every 2.25 pounds of bird
in the flock. For example, if birds average 4.5 pounds, a producer must
provide 2.0 square feet of outdoor space for each bird in the flock.
Organic pullet producers must provide at least one square foot of
outdoor space for every 3.0 pounds of bird in the flock. Organic
broiler producers must provide at least one square foot of outdoor
space for every 5.0 pounds of bird in the flock. The total outdoor
space that must be provided per flock is to be calculated by
multiplying the total number of birds in the flock by the space
required per bird (i.e., not by multiplying the number of birds
actually in the outdoor area at a given moment by the space requirement
per bird). All weight references in proposed Sec. 205.241(b) and (c)
refer to the weight of live birds and not the weight of processed
birds.
Proposed Sec. 205.241(c)(7) would clarify that porches and lean-to
type structures that are not enclosed (e.g., with a roof, but with
screens removed) and allow birds to freely access other outdoor areas
can be counted as outdoor space. This would ensure that enclosed
porches are not counted as outdoor space, while providing flexibility
for producers to use modified porches as outdoor space when they are
open to larger outdoor areas that the birds can access.
Proposed Sec. 205.241(d) describes the conditions under which
organic avian livestock producers may temporarily confine birds indoors
(``temporary'' and ``temporarily'' further defined at Sec. 205.2).
Producers must record confinement, and should do so in a manner that
will demonstrate compliance with the USDA organic regulations (also see
Sec. 205.103). Records could include the reason for the confinement,
the duration of the confinement, and the flocks that were confined.
Records should be sufficient for a certifier to determine if birds were
confined in compliance with this section. The requirements of proposed
Sec. 205.241(d) are adapted from previously established requirements
for organic livestock at Sec. 205.239(b), 2009 and 2011 NOSB
recommendations, and third-party animal welfare organization standards.
Proposed Sec. 205.241(d)(1) would provide an allowance for
temporary confinement in response to inclement weather, which is
defined at Sec. 205.2. In addition, this provision would allow birds
to be confined indoors when the temperature does not exceed 40[deg] F.
It would also allow birds to be denied outdoor access or be brought
inside when the daytime temperature exceeds 90[deg] F. In this case,
producers have to provide outdoor access during parts of the day when
temperatures are between 40-90[ordm] F, unless other forms of
[[Page 48578]]
inclement weather occur. Weather may still qualify as inclement weather
(Sec. 205.2) within the 40-90[deg] F temperature range. For example,
excessive precipitation and very violent weather can occur when
temperatures are within 40[deg] F and 90[deg] F. Likewise, weather may
meet the definition of inclement weather within the range of 40[deg] F
and 90[deg] F if the relative humidity is very high and the air
temperature is nearing 90[deg] F, or under extremely windy conditions.
As inclement weather is defined, in part, as weather that can cause
physical harm to a species, a producer would still be in compliance
with proposed Sec. 205.241(d)(1) if birds were confined at
temperatures that did not exceed 90[deg] F, if the weather could cause
physical harm.
Proposed Sec. 205.241(d)(2) would provide an allowance for
temporary confinement indoors due to a bird's stage of life. In this
section, AMS proposes specific requirements for confining chicken
broilers and chicken pullets due to their stage of life (``stage of
life'' previously defined at Sec. 205.2). Additionally, the section
includes a general provision for confining other avian species until
fully feathered. Chicken broilers may be confined through 4 weeks of
age and chicken pullets may be temporarily confined indoors through 16
weeks of age. The NOSB recommended 16 weeks of age as the age after
which outdoor access is required to provide adequate time for pullets
to complete their vaccination program before exposure to pathogens
outdoors. Any confinement beyond the time when birds are fully
feathered would be in accordance with proposed Sec. 205.241(d).
Proposed Sec. 205.241(d)(3) would provide an allowance for
temporary indoor confinement under conditions in which the health,
safety, or well-being of the birds could be jeopardized. Temporary
confinement would be required to be recorded, and to confine birds
under this proposed provision, a producer must have sufficient
justification to demonstrate that an animal's health, safety, or well-
being could be jeopardized by access to the outdoors. Certifying agents
would verify compliance with this requirement. Producers and certifying
agents should consult with animal health officials, as appropriate, to
determine when confinement of birds is warranted to protect the health,
safety, or well-being of the birds. Animal health officials are also
encouraged to reach out to certifying agents and to AMS to discuss
specific health concerns. AMS would continue to engage animal health
officials, including State Departments of Agriculture and State
Veterinarians, about risks to bird health and provide appropriate
guidance to certifying agents or producers, as necessary.
Proposed Sec. 205.241(d)(4) would provide an allowance for indoor
confinement to prevent risk to soil or water quality. This provision
would allow for confinement of birds when the outdoor area is being
managed to reestablish vegetation. As outdoor areas must be maximally
vegetated, producers may need to occasionally confine birds to meet the
vegetation requirement at Sec. 205.241(c)(2).
Proposed Sec. 205.241(d)(5) would provide an allowance for indoor
confinement for preventive health care procedures and for the treatment
of illness or injury. Neither life stages nor egg laying are considered
an illness for confinement purposes. For example, this provision would
allow producers to briefly confine a flock to administer a vaccine or
confine an individual animal that requires medical treatment.
Proposed Sec. 205.241(d)(6) would provide an allowance for indoor
confinement for sorting, shipping, and poultry sales. Birds would be
required to be managed organically during the entire time of
confinement. For example, any feed provided during confinement must be
organic. Confinement must be no longer than necessary to sort the birds
or to catch the birds, place them in shipping containers, and conduct
the sale.
Proposed Sec. 205.241(d)(7) would provide an allowance for indoor
confinement to train pullets to lay eggs in nest boxes, with a maximum
period of five weeks allowed for confinement (over the life of the
bird). The training period would be required to not be any longer than
required to establish the proper behavior. As soon as the behavior is
established, birds must be provided with access to the outdoors, except
when confined in accordance with other provisions under proposed Sec.
205.241(d).
Proposed Sec. 205.241(d)(8) would provide an allowance for indoor
confinement for youth exhibitions, such as with 4-H or the National FFA
Organization. This provision would also include an exemption to the
requirement that a livestock sales facility be certified as an organic
operation. As an example, if a youth exhibition and sale is held at a
livestock sales facility that is not certified organic, a youth may
sell birds there as organic, provided all other requirements for
organic management are met. During the youth event, the livestock may
be temporarily confined indoors. Otherwise, non-certified sales
facilities, such as auction barns, may not sell or represent livestock
as organic. AMS is adding these provisions at proposed Sec.
205.241(d)(8) to encourage the next generation of organic producers.
Proposed Sec. 205.241(e) would require organic poultry producers
to manage manure in a manner that does not contribute to contamination
of crops, soil, or water quality by plant nutrients, heavy metals, or
pathogenic organisms. Organic poultry producers would be required to
manage the outdoor space in a manner that does not put soil or water
quality at risk. In addition, organic poultry producers would be
required to comply with all other governmental agency requirements for
environmental quality. The proposed requirements of this section are
adapted from previously established requirements for organic livestock
at Sec. 205.239(e).
E. Transport and Slaughter
AMS is proposing to add a new section to the organic regulations at
Sec. 205.242 titled ``Transport and Slaughter,'' to address the care
of organic animals during transport and up to the time of slaughter.
Proposed Sec. 205.242 is divided into three subsections on
transportation, mammalian slaughter, and avian slaughter.
The proposed changes are made in response to a December 2011 NOSB
recommendation \40\ and under AMS's authority to promulgate standards
``for the care of livestock'' (7 U.S.C. 6509(d)(2)). AMS understands
that ``care of livestock'' is relevant up to the time of slaughter and
that some practices during transport and/or slaughter should affect an
animal's organic certification. Once killed, existing organic
regulations for handling operations become relevant for the processing,
packaging, and sale of organic animal products. The proposed
requirements would apply to the care of live animals.
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\40\ https://www.ams.usda.gov/sites/default/files/media/NOP%20Livestock%20Final%20Rec%20Animal%20Handling%20and%20Transport%20to%20Slaughter.pdf
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The December 2011 NOSB recommendation noted that additional
regulations for the transport and slaughter of organic animals were
appropriate to assure consumers that animal products sold as organic
are produced with a high level of animal welfare and, ``to avoid animal
mistreatment on the farm, during transport to, or at the slaughter
plant.'' The NOSB noted that their recommended regulatory language
reflect third-party animal welfare
[[Page 48579]]
certification standards and common practices within the industry. The
NOSB also specifically recommended that AMS adopt the ``necessary''
requirements from the recommendation to avoid increasing paperwork
burden or certification costs, and to avoid discouraging small
slaughter plants from seeking or maintaining organic certification. AMS
agrees that additional requirements are appropriate to cover the time
period(s) during which organic livestock are transported and
slaughtered. As noted above, products sold as organic must be managed
and processed in accordance with detailed organic regulations. AMS
believes that it is appropriate to clarify the requirements for
transport and slaughter in the organic regulations. This proposal seeks
to minimize paperwork burden and increases in certification costs, when
possible, by referring to existing regulations and laws that apply to
transport and slaughter. Specific requirements are also included, as
recommended by the NOSB.
Proposed Sec. 205.242(a)(1) would require that animals are clearly
identified during transport. AMS's approach requires that livestock are
clearly identified but provides flexibility on how the identity is
maintained during transport. Proposed Sec. 205.242(a)(2) would set
minimum fitness requirements for livestock to be transported. Proposed
Sec. 205.242(a)(2)(i) would require that calves have a dry navel cord
and the ability to stand and walk without assistance if they are to be
transported. This provision would apply to transport to buyers, auction
facilities, or slaughter facilities. Beef cattle and dairy cattle
producers may transport calves on the farm before the navel is dried
and the calves can walk. Proposed Sec. 205.242(a)(2)(ii) would
prohibit transport of non-ambulatory animals to buyers, auction
facilities, or slaughter facilities. These animals may either be given
medical treatments and cared for until their health conditions improve,
so that they are able to walk, or they may be euthanized.
Proposed Sec. 205.242(a)(3) and (4) would set minimum standards
for the trailer, truck, or shipping container used for transporting
organic livestock. The mode of transportation would be required to
provide seasonally appropriate ventilation to protect livestock against
cold or heat stress. This provision would require that air flow be
adjusted depending on the season and temperature. In addition, bedding
would be required to be provided on trailer floors as needed to keep
livestock clean, dry, and comfortable. If roughage is used as bedding,
the bedding would need to be organically produced and handled. Bedding
would not be required for poultry crates.
Proposed Sec. 205.242(a)(5) would require that all livestock be
provided with organic feed and clean water if transport time exceeds 12
hours. The 12-hour time period includes all times during which the
livestock are on the trailer, truck, or shipping container, even if
these modes of transportation are not moving. In cases such as poultry
slaughter in which requirements do not allow feed 24 hours before
slaughter, producers and slaughter facilities would need to ensure that
transport time does not exceed 12 hours. After 12 hours of transport,
the birds would need to be fed, which may prolong the time to
slaughter. The certified operation would need to present records--which
verify that transport times meet the 12-hour requirement--to the
certifying agent during inspections or upon request.
Proposed Sec. 205.242(a)(6) would require that operations that
transport livestock to sales or slaughter have emergency plans in place
that adequately address problems reasonably possible during transport.
Such emergency plans could include how to provide feed and water if
transport time exceeds 12 hours, what to do if livestock escape during
transport, or how to euthanize an animal injured during transport.
Shipping and/or receiving operations would also be required to include
these plans in their OSPs.
F. Slaughter Requirements (Sec. 205.242(b) and (c))
1. Slaughter and the Handling of Livestock in Connection With Slaughter
The requirements regarding slaughter and the handling of livestock
in connection with slaughter are governed by separate authority
applicable to both certified organic and non-organic livestock
products. The proposed rule reiterates that compliance with these
regulations, as determined by FSIS, is required for certified organic
livestock operations. The proposed requirements defers, in large part,
to existing regulations and law while also aiming to ensure that USDA-
accredited certifying agents have access to relevant records. The
proposal seeks to avoid undue burden on certified organic slaughter
facilities which could have the effect of reducing the availability of
certified organic slaughter facilities. Proposed Sec. 205.242(b)
regarding mammalian slaughter would clarify the authority of AMS,
certifying agents, and State organic programs to review records related
to humane handling and slaughter issued by the controlling national,
federal, or state authority, and records of any required corrective
actions if certified operations are found to have violated FSIS
regulations governing the humane handling of mammalian livestock in
connection with slaughter (note that AMS has separated mammalian from
avian slaughter requirements due to the differences in how mammalian
and avian livestock are handled and slaughtered). This new subsection
(proposed Sec. 205.242(b)), titled ``Mammalian Slaughter,'' would
govern mammals defined as ``livestock'' or ``exotic animals'' under the
FSIS regulations. Under the FSIS regulations, ``livestock'' are cattle,
sheep, swine, goat, horse, mule, or other equines. ``Exotic animals''
include antelope, bison, buffalo, cattalo, deer, elk, reindeer, and
water buffalo. These regulations govern the handling and slaughter of
most mammalian animals used for food in the United States and apply to
all operations that slaughter these animals.
Proposed Sec. 205.242(b)(1) would require certified organic
slaughter facilities to be in full compliance with the Humane Methods
of Slaughter Act (HMSA) of 1978 (7 U.S.C. 1901 et seq.) and its
implementing FSIS regulations, as determined by FSIS. The HMSA requires
that humane methods be used for handling and slaughtering livestock and
defines humane methods of slaughter. In the HMSA, Congress found ``that
the use of humane methods in the slaughter of livestock prevents
needless suffering; results in safer and better working conditions for
persons engaged in the slaughtering industry; brings about improvement
of products and economies in slaughtering operations; and produces
other benefits for producers, processors, and consumers which tend to
expedite an orderly flow of livestock and livestock products in
interstate and foreign commerce.'' The HMSA is referenced in the
Federal Meat Inspection Act (FMIA) at 21 U.S.C. 603 and is implemented
by FSIS humane handling and slaughter regulations found at 9 CFR parts
309 and 313. The FMIA provides that, for the purposes of preventing
inhumane slaughter of livestock, the Secretary of Agriculture will
assign inspectors to examine and inspect the methods by which livestock
are slaughtered and handled in connection with slaughter in
slaughtering establishments subject to inspection (21 U.S.C. 603(b)).
All establishments that slaughter livestock, which include any
certified organic operations that slaughter livestock, must meet the
humane
[[Page 48580]]
handling and slaughter requirements the entire time they hold livestock
in connection with slaughter. FSIS provides for continuous inspection
in livestock slaughter establishments, and inspection program personnel
verify compliance with the humane handling regulations during each
shift that animals are slaughtered, or when animals are on site, even
during a processing-only shift. The regulations at 9 CFR part 313
govern the maintenance of pens, driveways, and ramps; the handling of
livestock, focusing on their movement from pens to slaughter; and the
use of different stunning and slaughter methods. Notably, FSIS
inspection program personnel verify compliance with the regulations at
9 CFR part 313 through the monitoring of many of the same parameters
proposed by the NOSB in 2011, including prod use, slips and falls,
stunning effectiveness, and incidents of egregious inhumane
handling.\41\ The regulations at 9 CFR part 309 govern ante-mortem
inspection and ensure that only healthy ambulatory animals are
slaughtered, and that non-ambulatory are euthanized and disposed of
promptly. FSIS has a range of enforcement actions available regarding
violations of the humane slaughter requirements for livestock,
including noncompliance records, regulatory control actions, and
suspensions of inspection.
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\41\ FSIS Directive 6900.2, Revision 2, Humane Handling and the
Slaughter of Livestock, August 15, 2011.
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Further, FSIS encourages livestock slaughter establishments to use
a systematic approach to humane handling and slaughter to best ensure
that they meet the requirements of the HMSA, FMIA, and implementing
regulations.\42\ With a systematic approach, establishments focus on
treating livestock in such a manner as to minimize excitement,
discomfort, and accidental injury the entire time they hold livestock
in connection with slaughter. Establishments may develop written animal
handling plans and share them with FSIS inspection program personnel.
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\42\ Humane Handling and Slaughter Requirements and the Merits
of a Systematic Approach to Meet Such Requirements, FSIS, 69 FR
54625, September 9, 2004.
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AMS proposes to add a new Sec. 205.242(b)(2) for those certified
organic facilities that slaughter exotic animals and voluntarily
request FSIS inspection. FSIS also provides, upon request, voluntary
inspection of certain exotic animal species on a fee-for-service basis
under the authority of the Agricultural Marketing Act of 1946. FSIS
regulates the humane handling of the slaughter of exotic animals under
the regulations at 9 CFR part 352.10, which require that exotic animals
be slaughtered and handled in connection with slaughter in accordance
with the requirements for livestock at 9 CFR part 309 and 9 CFR part
313. Violation of these regulations can result in a denial of service
by FSIS.
Proposed Sec. 205.242(b)(3) would require that all certified
organic slaughter facilities provide any FSIS noncompliance records or
corrective action records relating to humane handling and slaughter to
certifying agents during inspections or upon request. Not all
violations of FSIS regulations result in a suspension of FSIS
inspection services. In some cases, FSIS will issue a noncompliance
record and the slaughter facility must perform corrective actions to
bring the slaughter facility back into compliance. These records would
be required to be provided to certifying agents during inspection or
upon request to verify that the slaughter facility is in full
compliance and has taken all corrective actions. If records revealed
that an organic operation had not taken corrective actions required by
FSIS within the time period allowed by FSIS, the certifying agent could
initiate actions to suspend the facility's organic certification. While
this action would be separate from any FSIS actions, it would impact
the facility's capacity to handle organic animals.
In addition, AMS recognizes that in the United States, some
slaughter facilities are regulated by the State for intra-state meat
sales. In foreign countries, foreign governments may be the appropriate
regulatory authority for humane slaughter inspections. In all cases,
the relevant humane slaughter noncompliance records and corrective
action records would be required to be provided to certifying agents
during the inspections or upon request.
2. Slaughter and the Handling of Poultry in Connection With Slaughter
AMS proposes to add Sec. 205.242(c) regarding avian slaughter
facilities. Proposed Sec. 205.242(c)(1) would clarify the authority of
AMS, certifying agents, and State organic programs to review
noncompliance records related to the use of good manufacturing
practices in connection with slaughter issued by the controlling
national, federal, or state authority, and records of subsequent
corrective action if certified operations are found to have violated
the Poultry Products Inspection Act (PPIA) requirements regarding
poultry slaughter, violated the FSIS regulations regarding the
slaughter of poultry, or failed to use good commercial practices in the
slaughter of poultry, as determined by FSIS. Under the PPIA and the
FSIS regulations, poultry are defined as chickens, turkeys, ducks,
geese, guineas, ratites, and squabs. These species constitute most
avian species slaughtered for human food in the United States. However,
the proposed organic standards for avian slaughter would apply to all
species biologically considered avian or birds. The NOSB did not
directly address avian slaughter requirements. However, AMS is
proposing to add avian slaughter requirements for consistency with the
new mammalian slaughter requirements and to provide consistent
slaughter requirements for certified organic operations.
While the HMSA does not apply to poultry, under the PPIA at 21
U.S.C. 453(g)(5), a poultry product is considered adulterated if it is
in whole, or in part, the product of any poultry that has died by other
means than slaughter. FSIS regulations, in turn, require that poultry
be slaughtered in accordance with good commercial practices in a manner
that will result in thorough bleeding of the poultry carcass and will
ensure that breathing has stopped before scalding (9 CFR 381.65 (b)).
Compliance with FSIS Directives 6100.3 and 6910.1, as determined by
FSIS, would be required under the proposed rule.
In a 2005 Federal Register Notice, FSIS reminded all poultry
slaughter establishments that live poultry:
. . . must be handled in a manner that is consistent with good
commercial practices, which means they should be treated humanely.
Although there is no specific federal humane handling and slaughter
statute for poultry, under the PPIA, poultry products are more
likely to be adulterated if, among other circumstances, they are
produced from birds that have not been treated humanely, because
such birds are more likely to be bruised or to die other than by
slaughter.\43\
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\43\ Treatment of Live Poultry before Slaughter, FSIS, 70 FR
56624, September 28, 2005.
FSIS also suggested in this Notice that poultry slaughter
establishments consider a systematic approach to handling poultry in
connection with slaughter. FSIS defined a systematic approach as one in
which establishments focus on treating poultry in such a manner as to
minimize excitement, discomfort, and accidental injury the entire time
that live poultry is held in connection with slaughter. Although the
adoption of such an approach is voluntary, it would likely
[[Page 48581]]
better ensure that poultry carcasses are unadulterated.
FSIS inspection program personnel verify that poultry slaughter is
conducted in accordance with good commercial practices in the pre-scald
area of slaughter establishments, where they observe whether
establishment employees are mistreating birds or handling them in a way
that will cause death or injury, prevent thorough bleeding, or result
in excessive bruising. Examples of noncompliant mistreatment could
include breaking the legs of birds to hold the birds in the shackle,
birds suffering or dying from heat exhaustion, and breathing birds
entering the scalder.\44\ Also, in 2015, FSIS issued specific
instructions to inspection program personnel for recording
noncompliance with the requirement for the use of good commercial
practices in poultry slaughter.\45\
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\44\ FSIS Directive 6100.3, Revision 1, Ante-Mortem and Post-
Mortem Poultry Inspection, April 30, 2009.
\45\ FSIS Notice 07-15, Instructions for Writing Poultry Good
Commercial Practices Noncompliance Records and Memorandum of
Interview Letters for Poultry Mistreatment, January 21, 2015.
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Proposed Sec. 205.242(c)(2) would require that all certified
organic slaughter facilities provide, during the annual organic
inspection, any FSIS noncompliance records and corrective action
records related to the use of good manufacturing practices in the
handling and slaughter of poultry in order to determine that slaughter
facilities have addressed any outstanding FSIS noncompliances and are
in good standing with FSIS. Not all violations of FSIS regulations
result in a suspension of inspection services. In some cases, FSIS will
issue a noncompliance record and the slaughter facility must perform
corrective actions to bring the slaughter facility back into
compliance. These records must be provided to the certifying agent at
inspection or upon request to verify that the slaughter facility is
operating in compliance with FSIS regulations and is addressing/has
addressed all corrective actions. If records revealed that an organic
operation had not taken corrective actions required by FSIS within the
time period allowed by FSIS, the certifying agent could initiate
actions to suspend the facility's organic certification. While this
action would be separate from any FSIS actions, it would impact the
facility's capacity to handle organic animals. In addition, AMS
recognizes that some poultry slaughter facilities in the United States
are regulated by the State for intra-state poultry sales. In foreign
countries, foreign governments may be the appropriate regulatory
authority for poultry slaughter inspections. In all cases, the relevant
noncompliance records and corrective action records would be required
to be provided to the certifying agent during inspections or upon
request.
Unlike the proposed requirements for livestock slaughter
inspection, exemptions from poultry slaughter inspection exist for some
poultry that is going to be sold to the public. The PPIA exempts from
continuous inspection some establishments that slaughter poultry based
on various factors, such as volume of slaughter and the nature of
operations and sales. This includes persons custom slaughtering and
distributing from their own premises directly to household consumers,
restaurants, hotels, and boarding houses, for use in their own dining
rooms, or in compliance with religious dietary laws (21 U.S.C. Chapter
10).
AMS is proposing to add handling and slaughter standards for such
poultry that is either exempt from or not covered by the inspection
requirement of the PPIA. These proposed requirements would serve to
establish a consistent and basic standard for the humane handling of
organic poultry, regardless of an operation's size or method of sales,
for example. Specifically, proposed Sec. 205.242(c)(3)(i) would
prohibit hanging, carrying, or shackling any lame birds by their legs.
Birds with broken legs or injured feet may suffer needlessly if carried
or hung by their legs. Such birds would be required to either be
euthanized or made insensible before being shackled. AMS also is
proposing (Sec. 205.242(c)(3)(ii)) to include a requirement that all
birds that were hung or shackled on a chain or automated slaughter
system be stunned prior to exsanguination (bleeding). This proposed
requirement would not apply to small-scale producers who do not shackle
the birds or use an automated system but who instead place the birds in
killing cones before exsanguinating them without stunning. This
proposed requirement would not apply to ritual slaughter establishments
(e.g., Kosher or Halal slaughter facilities), who are required to meet
all the humane handling regulatory requirements except stunning prior
to shackling, hoisting, throwing, cutting, or casting. Finally,
proposed Sec. 205.242(c)(3)(iii) would require that all birds be
irreversibly insensible prior to being placed in the scalding tank.
IV. Related Documents
Documents related to this proposed rule include the Organic Foods
Production Act of 1990, as amended, (7 U.S.C. 6501-6524) and its
implementing regulations (7 CFR part 205). The NOSB deliberated and
made the recommendations described in this proposal at public meetings
announced in the following Federal Register notices: 67 FR 19375 (April
19, 2002); 74 FR 46411 (September 9, 2009); 75 FR 57194 (September 20,
2010); and 76 FR 62336 (October 7, 2011). NOSB meetings are open to the
public and allow for public participation.
AMS published a series of past proposed rules that addressed, in
part, the organic livestock requirements at: 62 FR 65850 (December 16,
1997); 65 FR 13512 (March 13, 2000); 71 FR 24820 (April 27, 2006); 73
FR 63584 (October 24, 2008), and 81 FR 21956 (April 13, 2016). Past
final rules relevant to this topic were published at: 65 FR 80548
(December 21, 2000); 71 FR 32803 (June 7, 2006); and 75 FR 7154
(February 17, 2010). AMS activities and documents that followed
publication of the January 19, 2017 OLPP final rule (82 FR 7042) are
detailed above in the AMS POLICY section.
V. Executive Orders 12866 and 13563--Executive Summary
The Regulatory Impact Analysis and Regulatory Flexibility Analysis
are available at https://www.regulations.gov in the ``docket'' for this
proposed rule. The docket can be found by searching for ``AMS-NOP-21-
0073'' at https://www.regulations.gov. Below is an executive summary of
the analyses.
AMS is writing this proposed rule to clarify and ensure consistent
application of the USDA organic standards and therefore mitigate
information asymmetries and associated costs amongst certifying agents,
producers, and consumers. This action will augment the USDA organic
livestock production regulations with clear provisions to fulfill the
purposes of the Organic Foods Production Act (OFPA) (7 U.S.C. 6501-
6524): to assure consumers that organically produced products meet a
consistent, uniform standard and to further facilitate interstate
commerce of organic products. OFPA mandates that detailed livestock
regulations be developed through notice and comment rulemaking (7
U.S.C. 6509(g)) and USDA did so when it published the final rule on the
National Organic Program (65 FR 80547; December 21, 2000). In 2010, AMS
published a final rule (75 FR 7154; February 17, 2010) clarifying the
pasture and grazing requirements for organic ruminant livestock. This
proposed rule would provide clarity for the production of organic
livestock and poultry, consistent
[[Page 48582]]
with recommendations provided by USDA's Office of Inspector General and
nine separate recommendations from the NOSB.
This proposed rule would add requirements for the production,
transport, and slaughter of organic livestock and poultry. The proposed
provisions for outdoor access and space for organic poultry production
are the focal areas of this rule. Currently, organic poultry are
already required to have outdoor access, but this varies widely in
practice.\46\ Some organic poultry operations provide large, open-air
outdoor areas, while other operations provide minimal outdoor space or
use screened and covered enclosures commonly called ``porches'' to meet
outdoor access requirements. This variability leads to additional costs
for some producers and consumers, and may also create consumer
confusion about the meaning of the USDA organic label.
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\46\ The 2013 NAHMS poultry survey reports that 36% of organic
hens covered in the survey have at least 2 sq. ft. per bird
(equivalent to 2.25 lbs./sq. ft.) of outdoor space and 35% of hens
have outdoor access via a porch system or covered area. Other
studies have found between 15.5-59% of organic egg production has at
least 2 sq. ft. of outdoor space. https://www.aphis.usda.gov/aphis/ourfocus/animalhealth/monitoring-and-surveillance/nahms/NAHMS_Poultry_Studies.
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The proposed changes would better define standards of outdoor
access for poultry, taking into account stakeholder input, as mandated
by OFPA. Specifically, the changes address the wide disparities in
production practices within the organic poultry sector. These
provisions support an open, fair, and equitable market for producers
who choose to pursue organic certification by providing standards that
would apply to all organic livestock operations. Similarly, these
provisions would reduce consumer search costs and welfare loss by
standardizing the attributes of organic livestock and poultry products.
In the long run, these provisions may help minimize the risk to
consumer confidence brought on by these costs.
This economic impact analysis describes the cost impacts and
benefits of the proposed rule, with a focus on organic egg and broiler
producers, because these types of operations may face additional
production costs as a result of this proposed rule. AMS is evaluating
this proposed rule's potential benefits against the costs of:
Additional indoor space for broilers
Additional outdoor space for layers
To project costs, AMS assessed current (baseline) conditions and
considered how producers might respond to the proposed requirements.
Based on NOSB deliberations, surveys of organic poultry producers, and
public comments on previous proposed rules, we determined that the
outdoor access/stocking density requirements for layers and indoor
stocking density requirements for broilers would drive the costs of
this proposed rule. For organic layers, the key factor affecting
compliance is the availability of land to accommodate all birds at the
required stocking density. In our assessment of projected costs and
benefits of the proposed rule and policy alternatives, we consider four
scenarios that represent a combination of policy options and market
responses to policy implementation:
Scenario 1: No Rule. There are no costs and no benefits because the
status quo is maintained.
Scenario 2: Growth Prevented and Exit in Year 6 (5-year Co-
Proposal). Existing producers and those certified within three years of
the rule's effective date have five years from the effective date
(e.g., 60 days after publication of final rule) to comply with the
outdoor space requirements for layers. Those certified more than three
years after the rule's effective date must comply immediately.
Producers that account for approximately half of existing organic egg
production are assumed to comply with the outdoor space requirement on
the fifth anniversary of the rule's effective date while maintaining
current production levels; the other half move from organic to the
cage-free, non-organic market at that time. There is assumed to be no
growth in impacted organic egg production once the final rule is
effective.
Scenario 3: Growth and Exit in Year 6 (5-year Co-Proposal). The
policy is the same as in Scenario 2, it is assumed that producers
accounting for approximately half of existing organic egg production
leave organic production to join the cage-free, non-organic market five
years after the rule's effective date (lesser amounts of cage-free
production are new in the meantime). The other half of production is
assumed to come into compliance with the rule at that time. Organic egg
production grows at a slower rate than in Scenario 1 (i.e., if there
was no rule) in the five years after the rule's effective date as there
is assumed to be only growth among those producers that plan to come
into compliance with the rule, not among those planning to leave for
the cage-free market. In Scenario 3 there is a significantly higher
level of organic egg production than in Scenario 2 at the end of five
years because there is growth in organic egg production after the
rule's effective date. Costs and benefits include, among others,
effects calculated starting in year four for new entrants certified
more than three years after the rule's effective date, and starting in
year six for existing producers and new entrants starting within three
years of the rule's effective date.
Scenario 4: Growth and Exit in Year 16 (15-year Co-Proposal). The
rule is implemented with a 15-year grace period for implementation of
the layer outdoor space requirement for existing operations and those
certified within three years of the rule's effective date. Organic egg
production among operations that will not be compliant in year 16 is
frozen at year 1 levels. The proportion of existing production that
will become compliant in year 16 grows at historical rates for the
industry. Costs and benefits include, among others, effects calculated
starting in year four for new entrants certified more than three years
after the rule's effective date.
Regarding the organic broiler industry, AMS assumed that organic
broiler producers would build enough new facilities to comply with the
new indoor stocking density requirement and maintain their current
production level while remaining in the organic market.\47\
---------------------------------------------------------------------------
\47\ Additional land needed to meet indoor space requirements in
broiler production is on average much smaller than the land needed
for those adjusting to the requirements for outdoor access.
Additionally, past public comment and stakeholder feedback have
indicated that broiler producers would seek to maintain current
levels of production.
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Costs incurred by new entrants after the rule's publication are
counted for all new production starting in year two. Costs for all
other operators do not accrue until this rule is fully implemented
(i.e., three years after the effective date for broiler producers and
five years after the effective date for layer producers).
In summary, AMS estimates that the rule will increase total
production costs for broiler and layer operations between $9.3 million
and $14.6 million annually. This range spans three producer response
scenarios, two implementation periods for the outdoor space
requirements, and a no-rule scenario (see Table 2).
We estimate the annual costs for organic egg production are $4.6
million to $8.3 million (discounted annualized value) if 50% of organic
egg production in 2022 transitions to the cage-free egg market by the
5-year implementation date. Under this scenario the shift would also
result in approximately $113.6 million to $172.6 million
[[Page 48583]]
(discounted annualized value) in production that moves from organic to
cage-free egg production. We estimate the annual costs for organic egg
production are $3.6 million to $4.6 million (discounted annualized
value) with the co-proposed 15-year implementation date; under this
scenario, the shift would also result in approximately $62.2 million to
$77.8 million (discounted annualized value) in production that moves
from organic to cage-free egg production.
We estimate that the annual costs for organic broiler production
account for $5.7 million to $6.3 million of the above totals. This
reflects costs to build additional housing for more space per bird to
meet the indoor stocking density requirement. This rule will have
broad, important benefits for the organic sector as a whole that are
difficult to quantify. Standards that more closely align to consumer
expectations will sustain demand and support the growth of the $62
billion U.S. organic market.\48\ Furthermore, clear parameters for
production practices ensure fair competition among producers by
facilitating equitable certification and enforcement decisions.
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\48\ OTA, 2021 Industry Survey.
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To quantify the benefits of this proposed rule, AMS used research
that estimated consumers' willingness-to-pay for outdoor access to be
between $0.16 and $0.25 per dozen eggs. Based on this, AMS estimates
that the benefits for layer operations would range between $11.6 to
14.9 million (under Scenario 4) and $23.3 to 27.1 million annually
(under Scenario 3).
The benefits for broilers are calculated using a willingness-to-pay
of $0.34/lb. Based on this, AMS estimates that the annual discounted
benefits for broiler operations would range between $97 million and
$107 million. AMS estimates that the total annualized discounted
benefits would be between $109 million and $134 million for eggs and
broilers.
In the Regulatory Flexibility Analysis, AMS reports that large
poultry operations would have higher compliance costs than small
operations on average. Many larger organic layer operations will need
more land to comply with the outdoor access requirements, and some
operations will not be able to modify their houses to meet the proposed
outdoor access requirements due to how they are arranged on the farm.
Table 1 presents estimated net benefits for the models AMS
calculated. These models use the 5-year and 15-year implementation
periods (with growth) for the layer outdoor access/stocking density
requirements and the 3-year implementation period for the broiler
compliance horizon. Total annual discounted net benefits range between
$99 million and $119 million.
Table 1--Executive Summary: Costs and Benefits for Eggs and Broilers
----------------------------------------------------------------------------------------------------------------
Proposed rule Proposed rule Proposed rule Proposed rule
(5-year (5-year (15-year ---------------
compliance-- compliance-- compliance)
No Growth) Growth) ----------------
-------------------------------- Broilers (per
Eggs (per Eggs (per Eggs (per pound)
dozen) dozen) dozen)
----------------------------------------------------------------------------------------------------------------
Benefits (Consumer Willingness to Pay).......... $0.21 $0.21 $0.21 $0.34
Benefits with 80% Breaker Egg Adjustment........ 0.16 0.16 0.16
Cost (Change in Average Total Cost of 0.05 0.05 0.05 0.02
Production)....................................
Net Benefit per Unit............................ 0.11 0.11 0.11 0.32
20-Year Annualized Discounted Net Benefits (3%) 10,429 18,757 10,278 101,011
($1,000).......................................
20-Year Annualized Discounted Net Benefits (7%) 9,236 16,132 8,027 91,418
($1,000).......................................
Average Annual Domestic Information Collection .............. .............. .............. $194,777
Cost...........................................
----------------------------------------------------------------------------------------------------------------
Table 2--Four Scenarios: Market Responses to Outdoor Access Policies for Layers
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Assumed conditions Affected population..... Costs Benefits Eggs newly
labeled cage-
free
----------------------------------------------------------------------------------------------------------------
Millions of Dollars
----------------------------------------------------------------------------------------------------------------
Scenario 1: No Rule/No Change......... No producers or $0.0 $0.0 $0.0
consumers.
Scenario 2: 50% of organic layer Organic layer production $4.6-$5.2 $13.9-$15.7 $146.4-$172.6
production in year 6, moves to the at full implementation
cage-free market. Growth prevented. of rule (after year 5).
Scenario 3: 50% of organic layer Organic layer production $7.2-$8.3 $23.3-$27.1 $113.6-$131.6
production in year 6, moves to the at full implementation
cage-free market.. of rule (after year 5).
Growth considered..................... Compliance from growth
starting in year 4.
Scenario 4: Organic layer populations Organic layer and $3.6-$4.6 $11.6-$14.9 $62.2-$77.8
continue historical growth rates production at full
after rule and existing firms are implementation of rule
grandfathered until the end of year (after year 15).
15. Compliance from growth
starting in year 4.
All broiler production in year 4 Current broiler $5.7-$6.3 $97.1-$107.3 N/A
complies with the proposed rule. operations at full
implementation of the
rule (after year 3).
----------------------------------------------------------------------------------------------------------------
[[Page 48584]]
VI. Executive Order 12988
Executive Order 12988 instructs each executive agency to adhere to
certain requirements in the development of new and revised regulations
in order to avoid unduly burdening the court system. This proposed rule
cannot be applied retroactively.
States and local jurisdictions are preempted under the OFPA from
creating programs of accreditation for private persons or State
officials who want to become certifying agents of organic farms or
handling operations. A governing State official would have to apply to
USDA to be accredited as a certifying agent, as described in OFPA at 7
U.S.C. 6514. States are also preempted under OFPA at 7 U.S.C. 6503 and
6507 from creating certification programs to certify organic farms or
handling operations unless the State programs have been submitted to,
and approved by, the USDA Secretary as meeting the requirements of the
OFPA.
Pursuant to 7 U.S.C. 6507(b)(2), a State organic certification
program may contain additional requirements for the production and
handling of organically produced agricultural products that are
produced in the State and for the certification of organic farm and
handling operations located within the State under certain
circumstances. Such additional requirements must: (a) Further the
purposes of the OFPA, (b) not be inconsistent with the OFPA, (c) not be
discriminatory toward agricultural commodities organically produced in
other States; and (d) not be effective until approved by the Secretary.
Pursuant to 7 U.S.C. 6519, this proposed rule would not alter the
authority of the Secretary under the Federal Meat Inspection Act (21
U.S.C. 601-624), the Poultry Products Inspection Act (21 U.S.C. 451-
471), or the Egg Products Inspection Act (21 U.S.C. 1031-1056),
concerning meat, poultry, and egg products, nor any of the authorities
of the Secretary of Health and Human Services under the Federal Food,
Drug and Cosmetic Act (21 U.S.C. 301-399i), nor the authority of the
Administrator of the EPA under the Federal Insecticide, Fungicide and
Rodenticide Act (7 U.S.C. 136-136(y)).
Furthermore, 7 U.S.C. 6520 provides for the Secretary to establish
an expedited administrative appeals procedure under which persons may
appeal an action of the Secretary, the applicable governing State
official, or a certifying agent under this title that adversely affects
such person or is inconsistent with the organic certification program
established under this title. The OFPA also provides that the U.S.
District Court for the district in which a person is located has
jurisdiction to review the Secretary's decision.
VII. Executive Order 13175
Executive Order 13175 requires Federal agencies to consult and
coordinate with Tribes on a government-to-government basis on policies
that have Tribal implications, including regulations, legislative
comments, or proposed legislation. Additionally, other policy
statements or actions that have substantial direct effects on one or
more Indian Tribes, the relationship between the Federal Government and
Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes also require
consultation. This regulation discloses that there are tribal
implications. AMS hosted a virtual tribal consultation meeting on
September 9, 2021, where this proposed rule was discussed with tribal
leaders. No questions or concerns were brought to AMS's attention about
this rule by any tribal leaders at the meeting. If a tribe requests
consultation in the future, AMS will work with the Office of Tribal
Relations to ensure meaningful consultation is provided.
VIII. Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-3520) (PRA), AMS is requesting OMB approval for a new information
collection totaling 102,088 hours for the reporting and recordkeeping
requirements contained in this proposed rule. AMS is using the
previously assigned OMB control number 0581-0293 even though this is
new burden due to a proposed rule. OMB previously approved information
collection requirements associated with the NOP and assigned OMB
control number 0581-0191. AMS intends to merge this new information
collection, upon OMB approval, into the approved 0581-0191 information
collection. Below, AMS has described and estimated the new information
collection and recordkeeping burden, i.e., the amount of time and cost
of labor, for entities to prepare and maintain information to
participate in this voluntary labeling program. The OFPA, as amended,
provides authority for this action.
Title: National Organic Program: Organic Livestock and Poultry
Standards.
OMB Control Number: 0581-0293.
Expiration Date of Approval: 3 years from OMB date of approval.
Type of Request: New collection.
Abstract: Information collection and recordkeeping is necessary to
implement reporting and recordkeeping necessitated by amendments to
Sec. Sec. 205.238 and 205.239 and the addition of Sec. Sec. 205.241
and 205.242 for additional animal welfare standards for organic
livestock and poultry production under the USDA organic regulations.
The Organic Foods Production Act (OFPA) authorizes the further
development of livestock production standards (7 U.S.C. 6509). This
proposed action is necessary to address multiple recommendations
provided to USDA by the NOSB to add specificity about livestock and
poultry production practices with the purpose of ensuring consumers
that conditions and practices for livestock and poultry products
labeled as organic encourage and accommodate natural behaviors and
utilize preventive health care and humane slaughter practices.
All certified organic operations must develop and maintain an
organic system plan (OSP) to comply with the USDA organic regulations
(Sec. 205.201). The OSP must include a description of practices and
procedures to be performed and maintained, including the frequency with
which they will be performed. Under this proposed rule, organic
livestock and poultry operations would be subject to additional
reporting requirements. The proposed requirements in Sec. Sec.
205.238, 205.239, 205.241, and 205.242 would require livestock and
poultry operations to provide specific documentation as a part of the
OSP that describes livestock and poultry living conditions (including
minimum space requirements, outdoor access, preventive health care
practices [e.g., physical alterations, euthanasia], and humane
transportation and slaughter practices). This documentation would
enable certifying agents to make consistent certification decisions and
facilitate fairness and transparency for the organic producers and
consumers that participate in this market. This proposed action and its
associated information collection would promulgate changes to the USDA
organic regulations consistent with the OFPA.
The PRA also requires AMS to measure the recordkeeping burden.
Under the USDA organic regulations, each producer is required to
maintain and make available upon request, for five years, such records
as are necessary to verify compliance (Sec. 205.103). Certifying
agents are required to maintain records for 5 to 10 years, depending on
the type of record (Sec. 205.510(b)), and make these records
[[Page 48585]]
available for inspection upon request (Sec. 205.501(a)(9)).
The new information that livestock and poultry operations would be
required to provide for certification would assist certifying agents
and inspectors in the efficient and comprehensive evaluation of these
operations and would impose an additional recordkeeping burden for
livestock and poultry operations. Certifying agents currently involved
in livestock certification are required to observe the same
recordkeeping requirements to maintain accreditation. AMS expects that
this proposed rule would increase the recordkeeping burden on certified
operations and certifying agents during the first year of
implementation and would then become routine to maintain. In addition,
livestock and poultry operations that claim organic status in direct-
to-consumer sales (but are exempt from organic certification because
they sell $5,000 or less of organically managed animal products) must
maintain records to support their claim in the event of a complaint.
State organic programs enforce the OFPA in its state under the
authority of AMS, and they are also impacted by these requirements. AMS
expects that this proposed rule would not significantly increase the
recordkeeping burden on exempt operations or state organic programs.
Reporting and recordkeeping are essential to the integrity of the
organic certification system. A clear paper trail is a critical tool
for verifying that practices meet the mandate of OFPA and the USDA
organic regulations. The information collected supports the AMS
mission, program objectives, and management needs by enabling AMS to
assess the efficiency and effectiveness of the NOP. The information
also affects decisions because it is the basis for evaluating
compliance with the OFPA and USDA organic regulations, administering
the NOP, establishing the cost of the program, and facilitating
management decisions and planning. It also supports administrative and
regulatory actions to address noncompliance with the OFPA and USDA
organic regulations.
This information collection is only used by the certifying agent
and authorized representatives of USDA, including AMS and NOP staff.
Certifying agents, including any affiliated organic inspectors, and
USDA are the primary users of the information.
Respondents
AMS identified four types of entities (respondents)--organic
livestock and poultry operations, accredited certifying agents,
inspectors, and state organic programs--that will need to submit and
maintain information in order to participate in organic livestock and
poultry certification. To more precisely understand the paperwork costs
of this proposed rule, AMS calculates the potential impacts utilizing
domestic and foreign labor rates per hour plus benefits.
For each type of respondent, we describe the general paperwork
submission and recordkeeping activities and estimate: (i) the number of
respondents; (ii) the hours they spend, annually, completing the
paperwork requirements of this labeling program; and (iii) the costs of
those activities based on prevailing domestic \49\ and foreign \50\
wages and benefits.51 52
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\49\ The source of the specific hourly wage rates identified
below is the National Compensation Survey: Occupational Employment
and Wages, May 2021, published by the Bureau of Labor Statistics.
Bureau of Labor Statistics, Occupational Employment and Wages,
https://www.bls.gov/oes/current/oes_nat.htm.
\50\ The source of the data is based on average World Bank wage
rates for countries with USDA-accredited certifying agents which are
70.3% of U.S. labor rates. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
\51\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation, Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs, June
18, 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
\52\ The source of compensation rates is based on an average of
Organization for Economic Co-Operation and Development (OECD)
benefits compensation rates at 34.63% of wage rates for countries
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
---------------------------------------------------------------------------
Total (Domestic and Foreign) Information Collection Cost (Reporting and
Recordkeeping) of Proposed Rule: $4,138,397
For the 7,559 reporting and recordkeeping respondents, the total
information collection for both reporting and recordkeeping is 102,088
hours with 40,673 total responses, 5.38 responses per respondent, and
2.51 hours per response at a total burden cost of $4,138,397 for both
reporting (Table 1) and recordkeeping (Table 2). These are estimates of
costs for respondents to develop procedures, receive training, and
perform tasks for the first time. AMS estimates that as livestock and
poultry producers adapt to the proposed requirements in Sec. Sec.
205.238, 205.239, 205.241, and 205.242, the labor hours for the new
requirements are one-time costs and will become routine to maintain.
These costs will be merged into the overall information collection
burden for the program. All costs are rounded.
1. Operations. In order to obtain and maintain certification,
domestic and foreign organic operations will need to develop and
maintain an OSP. Livestock and poultry producers and handlers will need
to submit the following information to certifying agents: an
application for certification, detailed descriptions of specific
practices, and annual updates to continue certification and to report
changes in their practices. The OSP is a requirement for all organic
operations and the USDA organic regulations describe what information
must be included (Sec. 205.201). This proposed rule describes the
additional information in Sec. Sec. 205.238, 205.239, 205.241, and
205.242 that would need to be included in a livestock and poultry
operation's organic system plan in order to assess compliance with
these proposed new requirements. Certified operations are also required
to keep records about their organic production and/or handling for at
least five years (Sec. 205.103(b)(3)).
AMS estimated the number of livestock and poultry operations that
would be affected by this proposed action. AMS estimates that 6,174
currently certified organic domestic and foreign livestock and poultry
operations will be subject to the amendments in Sec. Sec. 205.238,
205.239, 205.241, and 205.242. Based on average growth of 5.9% in
livestock and poultry operations under current rules,\53\ AMS expects
to add 364 operations to the 6,174 operations currently certified for
livestock or poultry production. In addition, AMS estimates that there
are 713 livestock and poultry operations that claim organic status in
direct-to-consumer sales (but are exempt from organic certification
because they sell $5,000 or less of organically managed animal
products) that will be impacted by the new recordkeeping
requirements.\54\
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\53\ Organic Integrity Database: https://organic.ams.usda.gov/integrity/.
\54\ USDA National Ag Statistics Service, Census of Agriculture,
2019 Organic Survey: https://www.nass.usda.gov/Publications/AgCensus/2017/Online_Resources/Organics/.
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AMS estimates the average collection and recordkeeping costs per
organic livestock and producer poultry to be $314.47. This estimate is
based on an average of 7.3 labor hours (53,018 total hours per 7,252
certified and exempt organic livestock and poultry operations) at
$48.49 per labor hour,\55\
[[Page 48586]]
including 31.3% benefits,\56\ and $34.95 per labor hour,\57\ including
34.63% benefits,\58\ for an organic domestic and foreign livestock or
poultry producer, respectively. This estimate includes operations that
make organic claims about their product but are exempt from
certification because they only sell $5,000 or less organic animal and
poultry products.
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\55\ National Compensation Survey: Occupational Employment and
Wage Estimates, May 2020, published by the Bureau of Labor
Statistics. 11-9013 Farmers, Ranchers, and Other Agricultural
Managers. https://www.bls.gov/oes/current/oes_nat.htm.
\56\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation, Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs, June
18, 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
\57\ The source of the data is based on average World Bank wage
rates for countries with USDA-accredited certifying agents, which
were 70.3% of U.S. labor rates in 2020. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
\58\ The source of compensation rates is based on an average of
Organization for Economic Co-Operation and Development (OECD)
benefits compensation rates at 34.63% of wage rates for countries
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
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2. Certifying agents. Certifying agents are State, private, or
foreign entities accredited by USDA to certify domestic and foreign
livestock producers and handlers as organic in accordance with the OFPA
and USDA organic regulations. Certifying agents determine if an
operation meets organic requirements, using detailed information from
the operation about its specific practices and on-site inspection
reports from organic inspectors. Currently, there are 75 certifying
agents accredited under NOP that are based in the U.S. and in foreign
countries. AMS accredits 57 certifying agents for the scope of
livestock to certify organic livestock and poultry operations. AMS
assumes that all certifying agents accredited for the scope of
livestock will evaluate livestock and poultry operations for compliance
with the USDA organic regulations and will therefore be subject to the
proposed requirements in Sec. Sec. 205.238, 205.239, 205.241, and
205.242.
Each entity seeking to continue USDA accreditation for the scope of
livestock will need to submit information documenting its business
practices including certification, enforcement and recordkeeping
procedures, personnel qualifications, and the provision of training for
certification review personnel and inspectors (Sec. 205.504). AMS will
review that information during their next scheduled on-site
assessments, which occur at least twice every five years to determine
whether to continue accreditation for the scope of livestock.
Certifying agents will need to update their information, provide the
results of personnel performance evaluations and the internal review of
its certification activities, and document the training provided to
certification review personnel and inspectors (Sec. 205.510) to comply
with the proposed requirements.
AMS projects that the additional components of organic system plans
for livestock and poultry producers may entail longer review times of
documents and longer inspection times to evaluate operations under
these proposed new requirements for the first time. AMS estimates the
average collection and recordkeeping costs per certifying agent will be
$25,759. This estimate of the average cost for each of the 57
certifying agents is based on an average of 609 labor hours (34,740
total hours across 57 certifiers) to prepare procedures to certify
operations under these new requirements, certify an average of 115
livestock or poultry operations (6,539 total certified operations
across 57 certifiers), provide training to their certification review
personnel and inspectors, and store the records at $47.73 per labor
hour,\59\ including 31.7% benefits,\60\ and $34.40 per labor hour,\61\
including 34.63% benefits \62\ for a domestic and foreign certifying
agent, respectively. These are one-time costs that will become routine
to maintain.
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\59\ National Compensation Survey: Occupational Employment and
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau
of Labor Statistics, Occupational Employment and Wages, May 2021.
\59\ The labor rate for certification review staff is based on
Occupational Employment Statistics group 13-1041, Compliance
Officers. Compliance officers examine, evaluate, and investigate
eligibility for or conformity with laws and regulations governing
contract compliance of licenses and permits, and perform other
compliance and enforcement inspection and analysis activities not
classified elsewhere. https://www.bls.gov/oes/current/oes_nat.htm.
\60\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation, Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
\61\ The source of the data is based on average World Bank wage
rates for countries with USDA-accredited certifying agents, which
are 70.3% of U.S. labor rates. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
\62\ The source of compensation rates is based on an average of
Organization for Economic Co-Operation and Development (OECD)
benefits compensation rates at 34.63% of wage rates for countries
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
---------------------------------------------------------------------------
3. Inspectors. Inspectors conduct on-site inspections of organic
operations and operations applying for certification and report their
findings to the certifying agent. Inspectors may be the certifying
agents themselves, employees of the certifying agents, or individual
contractors. The USDA organic regulations call for certified operations
to be inspected annually; however, a certifying agent may call for
additional inspections on an as-needed basis (Sec. 205.403(a)).
Any individual who applies to conduct inspections of organic
livestock and poultry operations will need to submit information
documenting their qualifications to the certifying agent (Sec.
205.504(a)(3)). Inspectors will need to provide an inspection report to
the certifying agent for each operation inspected (Sec. 205.403(e)).
AMS projects that inspectors will attend at least one 5-hour training
to learn about inspecting operations under the new requirements.
AMS estimates that inspectors will spend two hours longer on
average to inspect an organic livestock or poultry operation and
prepare an inspection report for the first time under these proposed
new requirements. Inspectors do not have recordkeeping obligations;
certifying agents maintain the records of inspection reports. AMS
estimates the average collection cost per inspector to be $1,558. This
estimate is based on an average of 57 additional labor hours at $30.70
per labor hour,\63\ including 31.7% benefits,\64\ and at $22.13 per
labor hour,\65\ including 34.63% benefits,\66\ for domestic and foreign
inspectors, respectively, to receive training, and to inspect and
prepare inspection reports under the new requirements. These are one-
time costs that will become routine to maintain.
---------------------------------------------------------------------------
\63\ National Compensation Survey: Occupational Employment and
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau
of Labor Statistics, Occupational Employment and Wages, May 2021.
The labor rate for inspectors is based on Occupational Employment
Statistics group 45-2011, Agricultural Inspectors. Agricultural
inspectors inspect agricultural commodities, processing equipment,
facilities, and fish and logging operations to ensure compliance
with regulations and laws governing health, quality, and safety.
https://www.bls.gov/oes/current/oes_nat.htm.
\64\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation, Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
\65\ The source of the data is based on average World Bank wage
rates for countries with USDA-accredited certifying agents, which
are 70.3% of U.S. labor rates. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
\66\ The source of compensation rates is based on an average of
Organization for Economic Co-Operation and Development (OECD)
benefits compensation rates at 34.63% of wage rates for countries
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
---------------------------------------------------------------------------
4. State organic programs. The state organic program enforces the
OFPA in its state under the authority of USDA. The California state
organic program is the only state organic program at this
[[Page 48587]]
time. AMS estimates the collection cost $148 at $47.73 per labor
hour,\67\ including 31.7% benefits.\68\ This estimate includes two
hours to prepare the relevant procedures and one hour to store the
records related to this procedure. These are one-time costs that will
become routine to maintain.
---------------------------------------------------------------------------
\67\ National Compensation Survey: Occupational Employment and
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau
of Labor Statistics, Occupational Employment and Wages, May 2021.
\67\ The labor rate for certification review staff is based on
Occupational Employment Statistics group 13-1041, Compliance
Officers. Compliance officers examine, evaluate, and investigate
eligibility for or conformity with laws and regulations governing
contract compliance of licenses and permits, and perform other
compliance and enforcement inspection and analysis activities not
classified elsewhere. https://www.bls.gov/oes/current/oes_nat.htm.
\68\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation. Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
---------------------------------------------------------------------------
Please find the total information collection burden broken out as
reporting and recordkeeping costs that are discussed in narrative and
presented in Tables 1 and 2 below.
Total All Reporting Burden Cost: $3,537,460.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 2.64 hours per response.
Respondents: Certified organic and applicant livestock and poultry
operations, certifying agents, inspectors, and state organic programs.
Estimated Number of Reporting Respondents: 6,846.
Estimated Number of Reporting Responses: 33,363.
Estimated Total Reporting Burden on Respondents: 88,183 hours.
Estimated Total Reporting Responses per Reporting Respondents: 5
reporting responses per reporting respondents.
AMS estimates that the public reporting burden for this information
collection is estimated to be 88,183 hours at a total cost of
$3,537,460 with a total number of 6,846 respondents. Respondents are
comprised of currently certified operations, operations that will seek
certification over the next 12 months, USDA accredited certifying
agents, inspectors, and state organic programs. The reporting burden of
each of the respondent categories are explained below and can be viewed
in Table 1: Summary of Reporting Burden.
1. Organic Operations. There are 6,539 operations worldwide that
are either currently certified to the USDA organic standards for
livestock or poultry production or will be seeking certification for
livestock or poultry production over the next 12 months. Based on
average growth of 5.9% in livestock and poultry operations under
current rules,\69\ AMS expects to add 364 operations to the 6,174
operations currently certified for livestock or poultry production. AMS
estimates that the average reporting burden for all domestic and
foreign organic livestock and poultry producers, including new
applicants is 39,229 hours at a total estimated cost of $1,684,480.
---------------------------------------------------------------------------
\69\ Organic Integrity Database: https://organic.ams.usda.gov/integrity/.
---------------------------------------------------------------------------
AMS estimates that 3,858 operations based in the United States, and
2,681 operations based in foreign countries, including applicants for
certification under the current rules, will be impacted. Average
initial reporting burden hours for both a domestic and a foreign
organic operation or applicant for organic certification is 6 hours
with costs averaging $291 for a domestic operation at $48.49 per labor
hour,\70\ including 31.7% benefits,\71\ and $210 for a foreign
operation at $34.95 per labor hour,\72\ including 34.63% benefits.\73\
Total reporting hours for 3,858 domestic operations is 23,145 hours at
$48.49 per labor hour,\74\ including 31.7% benefits,\75\ and 16,084
hours for 2,681 foreign operations at $34.95 per labor hour,\76\
including 34.63% benefits.\77\
---------------------------------------------------------------------------
\70\ National Compensation Survey: Occupational Employment and
Wage Estimates, May 2020, published by the Bureau of Labor
Statistics. 11-9013 Farmers, Ranchers, and Other Agricultural
Managers. https://www.bls.gov/oes/current/oes_nat.htm.
\71\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation, Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs, June
18, 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
\72\ The source of the data is based on average World Bank wage
rates for countries with USDA-accredited certifying agents which
were 70.3% of U.S. labor rates in 2020. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
\73\ The source of compensation rates is based on an average of
Organization for Economic Co-Operation and Development (OECD)
benefits compensation rates at 34.63% of wage rates for countries
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
\74\ National Compensation Survey: Occupational Employment and
Wage Estimates, May 2020, published by the Bureau of Labor
Statistics. 11-9013 Farmers, Ranchers, and Other Agricultural
Managers. https://www.bls.gov/oes/current/oes_nat.htm.
\75\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation, Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs, June
18, 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
\76\ The source of the data is based on average World Bank wage
rates for countries with USDA-accredited certifying agents which
were 70.3% of U.S. labor rates in 2020. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
\77\ The source of compensation rates is based on an average of
Organization for Economic Co-Operation and Development (OECD)
benefits compensation rates at 34.63% of wage rates for countries
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
---------------------------------------------------------------------------
2. Accredited Certifying Agents. There are 57 certifying agents
worldwide that are USDA accredited under the livestock scope to certify
livestock or poultry producers as organic. AMS estimates that the
average reporting burden for all domestic and foreign certifying agents
accredited for the scope of livestock is 34,625 hours at a total
estimated cost of $1,463,427. Average initial reporting burden hours
for a domestic certifying agent is 601 hours with costs averaging
$28,679 at $47.73 per labor hour,\78\ including 31.7% benefits.\79\
Average initial reporting burden hours for a foreign certifying agent
is 617 hours with costs averaging $21, 232 at $34.40 per labor
hour,\80\ including 34.63% benefits.\81\
---------------------------------------------------------------------------
\78\ National Compensation Survey: Occupational Employment and
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau
of Labor Statistics, Occupational Employment and Wages, May 2021,
\78\ The labor rate for certification review staff is based on
Occupational Employment Statistics group 13-1041, Compliance
Officers. Compliance officers examine, evaluate, and investigate
eligibility for or conformity with laws and regulations governing
contract compliance of licenses and permits, and perform other
compliance and enforcement inspection and analysis activities not
classified elsewhere. https://www.bls.gov/oes/current/oes_nat.htm.
\79\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation, Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
\80\ The source of the data is based on average World Bank wage
rates for countries with USDA-accredited certifying agents which are
70.3% of U.S. labor rates. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
\81\ The source of compensation rates is based on an average of
Organization for Economic Co-Operation and Development (OECD)
benefits compensation rates at 34.63% of wage rates for countries
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
---------------------------------------------------------------------------
AMS estimates that the total reporting burden of the 34 certifying
agents based in the United States is $1,122,302 which is based on
20,429 hours at $47.73 per labor hour,\82\ including 31.7%
[[Page 48588]]
benefits.\83\ The reporting burden of the 23 certifying agents based in
foreign countries is $488,404 based on 14,196 at $34.40 per labor
hour,\84\ including 34.63% benefits.\85\
---------------------------------------------------------------------------
\82\ National Compensation Survey: Occupational Employment and
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau
of Labor Statistics, Occupational Employment and Wages, May 2021,
\82\ The labor rate for certification review staff is based on
Occupational Employment Statistics group 13-1041, Compliance
Officers. Compliance officers examine, evaluate, and investigate
eligibility for or conformity with laws and regulations governing
contract compliance of licenses and permits, and perform other
compliance and enforcement inspection and analysis activities not
classified elsewhere. https://www.bls.gov/oes/current/oes_nat.htm.
\83\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation, Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
\84\ The source of the data is based on average World Bank wage
rates for countries with USDA-accredited certifying agents which are
70.3% of U.S. labor rates. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
\85\ The source of compensation rates is based on an average of
Organization for Economic Co-Operation and Development (OECD)
benefits compensation rates at 34.63% of wage rates for countries
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
---------------------------------------------------------------------------
3. Inspectors. AMS estimates that the reporting burden for the 250
domestic and foreign inspectors inspecting livestock and poultry
operations worldwide is 14,327 hours at a total estimated cost of
$389,456. Average initial reporting burden hours for a domestic
inspectors is 57 hours at $30.70 per labor hour,\86\ including 31.7%
benefits \87\ and average reporting burden for foreign inspectors
calculates at 58 hours at $22.13 per labor hour,\88\ including 34.63%
benefits.\89\ AMS estimates the reporting burden of the 148 US based
inspectors is $259,479 which is based on 8,453 hours at $30.70 per
labor hour,\90\ including 31.7% benefits.\91\ The reporting burden of
the 103 inspectors based in foreign countries is estimated at $129,977
based on 5,874 at $22.13 per labor hour,\92\ including 34.63%
benefits.\93\
---------------------------------------------------------------------------
\86\ National Compensation Survey: Occupational Employment and
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau
of Labor Statistics, Occupational Employment and Wages, May 2021,
The labor rate for inspectors is based on Occupational Employment
Statistics group 45-2011, Agricultural Inspectors. Agricultural
inspectors inspect agricultural commodities, processing equipment,
facilities, and fish and logging operations to ensure compliance
with regulations and laws governing health, quality, and safety.
https://www.bls.gov/oes/current/oes_nat.htm.
\87\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation, Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
\88\ The source of the data is based on average World Bank wage
rates for countries with USDA-accredited certifying agents which are
70.3% of U.S. labor rates. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
\89\ The source of compensation rates is based on an average of
Organization for Economic Co-Operation and Development (OECD)
benefits compensation rates at 34.63% of wage rates for countries
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
\90\ National Compensation Survey: Occupational Employment and
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau
of Labor Statistics, Occupational Employment and Wages, May 2021,
The labor rate for inspectors is based on Occupational Employment
Statistics group 45-2011, Agricultural Inspectors. Agricultural
inspectors inspect agricultural commodities, processing equipment,
facilities, and fish and logging operations to ensure compliance
with regulations and laws governing health, quality, and safety.
https://www.bls.gov/oes/current/oes_nat.htm.
\91\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation, Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
\92\ The source of the data is based on average World Bank wage
rates for countries with USDA-accredited certifying agents which are
70.3% of U.S. labor rates. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
\93\ The source of compensation rates is based on an average of
Organization for Economic Co-Operation and Development (OECD)
benefits compensation rates at 34.63% of wage rates for countries
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
Table 1--Summary of Reporting Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Average Total
USDA certified operations reporting burden Number of reporting Average hours/ Wage + respondent reporting
respondents hours respondent benefits costs costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
USDA Certified Operations Reporting Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
USDA Certified Producers & Handlers--New & Existing 3,858 23,145 6 $48.49 $291 $1,122,30
Domestic...............................................
USDA Certified Producers & Handlers--New & Existing 2,681 16,084 6 34.95 210 562,18
Foreign................................................
-----------------------------------------------------------------------------------------------
USDA Certified Operations--All...................... 6,539 39,229 .............. .............. .............. 1,684,48
--------------------------------------------------------------------------------------------------------------------------------------------------------
USDA Accredited Certifiers Reporting Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
US Accredited US-Based Certifiers....................... 34 20,429 601 47.73 28,679 975,02
US Accredited Foreign-Based Certifiers.................. 23 14,196 617 34.40 21,232 488,40
-----------------------------------------------------------------------------------------------
US Certifiers--All.................................. 57 34,625 .............. .............. .............. 1,463,427
--------------------------------------------------------------------------------------------------------------------------------------------------------
Inspectors Reporting Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
US Based Inspectors..................................... 148 8,453 57 30.70 1,753 259,48
Foreign Based Inspectors................................ 102 5,874 58 22.13 1,274 129,98
-----------------------------------------------------------------------------------------------
Inspectors--All..................................... 250 14,327 .............. .............. .............. 389,456
--------------------------------------------------------------------------------------------------------------------------------------------------------
State Organic Programs Reporting Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
State Organic Programs.................................. 1 2 2 47.73 95.46 95
-----------------------------------------------------------------------------------------------
SOP--All............................................ 1 2 .............. .............. .............. 95
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Reporting Burden--All Respondents......... 6,846 88,183 .............. .............. .............. 3,537,460
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 48589]]
4. State Organic Programs. AMS estimates 2 reporting hours for the
California State Organic Program at $43.73 per labor hour,\94\
including 31.7% benefits \95\ costing $95 annually.
---------------------------------------------------------------------------
\94\ National Compensation Survey: Occupational Employment and
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau
of Labor Statistics, Occupational Employment and Wages, May 2021.
\94\ The labor rate for certification review staff is based on
Occupational Employment Statistics group 13-1041, Compliance
Officers. Compliance officers examine, evaluate, and investigate
eligibility for or conformity with laws and regulations governing
contract compliance of licenses and permits, and perform other
compliance and enforcement inspection and analysis activities not
classified elsewhere. https://www.bls.gov/oes/current/oes_nat.htm.
\95\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation, Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
---------------------------------------------------------------------------
Total All Recordkeeping Burden Cost: $600,937.
Estimate of Burden: Public recordkeeping burden for this collection
of information is estimated to average 1.9 hours per response.
Respondents: Certified operations, exempt operations, certifying
agents, and state organic programs.
Estimated Number of Recordkeeping Respondents: 7,309.
Estimated Total Recordkeeping Burden on Respondents: 13,905 hours.
Estimated Total Recordkeeping Responses per Recordkeeping
Respondents: 1.
AMS estimates that the public recordkeeping burden for this
information collection is estimated to be 13,905 hours per year at a
cost of $600,937 with a total number of 7,309 respondents. Respondents
are comprised of currently certified livestock and poultry operations,
operations that will seek certification over the next 12 months, exempt
livestock and poultry operations, USDA accredited certifying agents,
and state organic programs. The recordkeeping burden of each of the
respondent categories are explained below and can be viewed in Table 2:
Summary of Recordkeeping Burden.
1. Organic Operations. AMS estimates there are 7,252 operations
worldwide that are impacted by the new requirements for recordkeeping
for organic livestock and poultry. There are 6,539 domestic and foreign
operations that are either currently certified to the USDA organic
standards for livestock or poultry production or will be seeking
certification for livestock or poultry production over the next 12
months that are subject to these requirements. In addition, 713
livestock and poultry operations that claim organic status in direct to
consumer sales but are exempt from organic certification because they
sell $5,000 or less of organically managed animal products must
maintain records to support their claim in the event of a
complaint.\96\
---------------------------------------------------------------------------
\96\ USDA National Ag Statistics Service, Census of Agriculture,
2019 Organic Survey: https://www.nass.usda.gov/Publications/AgCensus/2017/Online_Resources/Organics/.
---------------------------------------------------------------------------
AMS estimates that the total recordkeeping burden for all 7,252
domestic and foreign organic livestock and poultry producers, including
new applicants and exempt operations is 13,076 hours at a total
estimated cost of $596,071. Average recordkeeping burden hours for
either a domestic or a foreign certified organic operation, or an
applicant for organic certification is 2 hours with costs averaging $97
for a domestic operation at $48.49 per labor hour,\97\ including 31.7%
benefits,\98\ and $70 for a foreign operation at $34.95 per labor
hour,\99\ including 34.63% benefits.\100\ The cost of the average
recordkeeping burden of the 713 domestic livestock and poultry
operations that are exempt from certification \101\ is $48 for one hour
at $48.49 per labor hour,\102\ including 31.7% benefits.\103\ Total
recordkeeping burden for all 4,571 domestic livestock and poultry
operations is 8,428 hours at a total estimated cost of $408,678 at
$48.49 per labor hour,\104\ including 31.7% benefits,\105\ and 5,361
hours at a total estimated costs of $187,393 for 2,681 foreign
operations at $34.95 per labor hour,\106\ including 34.63%
benefits.\107\
---------------------------------------------------------------------------
\97\ National Compensation Survey: Occupational Employment and
Wage Estimates, May 2020, published by the Bureau of Labor
Statistics. 11-9013 Farmers, Ranchers, and Other Agricultural
Managers. https://www.bls.gov/oes/current/oes_nat.htm.
\98\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation, Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs, June
18, 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
\99\ The source of the data is based on average World Bank wage
rates for countries with USDA-accredited certifying agents which
were 70.3% of U.S. labor rates in 2020. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
\100\ The source of compensation rates is based on an average of
Organization for Economic Co-Operation and Development (OECD)
benefits compensation rates at 34.63% of wage rates for countries
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
\101\ USDA National Ag Statistics Service, Census of
Agriculture, 2019 Organic Survey: https://www.nass.usda.gov/Publications/AgCensus/2017/Online_Resources/Organics/.
\102\ National Compensation Survey: Occupational Employment and
Wage Estimates, May 2020, published by the Bureau of Labor
Statistics. 11-9013 Farmers, Ranchers, and Other Agricultural
Managers. https://www.bls.gov/oes/current/oes_nat.htm.
\103\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation, Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs, June
18, 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
\104\ National Compensation Survey: Occupational Employment and
Wage Estimates, May 2020, published by the Bureau of Labor
Statistics. 11-9013 Farmers, Ranchers, and Other Agricultural
Managers. https://www.bls.gov/oes/current/oes_nat.htm.
\105\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation, Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs, June
18, 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
\106\ The source of the data is based on average World Bank wage
rates for countries with USDA-accredited certifying agents which
were 70.3% of U.S. labor rates in 2020. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
\107\ The source of compensation rates is based on an average of
Organization for Economic Co-Operation and Development (OECD)
benefits compensation rates at 34.63% of wage rates for countries
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
---------------------------------------------------------------------------
2. Accredited Certifying Agents. There are 57 certifying agents
worldwide that are USDA accredited under the livestock scope to certify
livestock or poultry producers as organic. AMS estimates that the
average annual recordkeeping burden for all domestic and foreign
certifying agents accredited for the scope of livestock is 115 hours at
a total estimated cost of $4,818. AMS estimates the recordkeeping
burden of the 34 certifying agents based in the United States as $3,210
which is based on 68 hours at $47.73 per labor hour,\108\ including
31.7% benefits.\109\ The recordkeeping burden of the 23 certifying
agents based in foreign countries is $1,680 based on 47 hours at $34.40
per labor hour,\110\ including 34.63% benefits.\111\ Average initial
[[Page 48590]]
recordkeeping burden hours is 2 hours for both domestic and foreign
based certifying agents calculated at $95 for domestic certifying
agents at $47.73 per labor hour,\112\ including 31.7% benefits,\113\
and $70 for foreign certifying agents at $34.40 per labor hour,\114\
including 34.63% benefits.\115\
---------------------------------------------------------------------------
\108\ National Compensation Survey: Occupational Employment and
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau
of Labor Statistics, Occupational Employment and Wages, May 2021, 1
The labor rate for certification review staff is based on
Occupational Employment Statistics group 13-1041, Compliance
Officers. Compliance officers examine, evaluate, and investigate
eligibility for or conformity with laws and regulations governing
contract compliance of licenses and permits, and perform other
compliance and enforcement inspection and analysis activities not
classified elsewhere. https://www.bls.gov/oes/current/oes_nat.htm.
\109\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation, Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
\110\ The source of the data is based on average World Bank wage
rates for countries with USDA-accredited certifying agents which are
70.3% of U.S. labor rates. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
\111\ The source of compensation rates is based on an average of
Organization for Economic Co-Operation and Development (OECD)
benefits compensation rates at 34.63% of wage rates for countries
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
\112\ National Compensation Survey: Occupational Employment and
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau
of Labor Statistics, Occupational Employment and Wages, May 2021,
\112\ The labor rate for certification review staff is based on
Occupational Employment Statistics group 13-1041, Compliance
Officers. Compliance officers examine, evaluate, and investigate
eligibility for or conformity with laws and regulations governing
contract compliance of licenses and permits, and perform other
compliance and enforcement inspection and analysis activities not
classified elsewhere. https://www.bls.gov/oes/current/oes_nat.htm.
\113\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation, Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
\114\ The source of the data is based on average World Bank wage
rates for countries with USDA-accredited certifying agents which are
70.3% of U.S. labor rates. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
\115\ The source of compensation rates is based on an average of
Organization for Economic Co-Operation and Development (OECD)
benefits compensation rates at 34.63% of wage rates for countries
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
---------------------------------------------------------------------------
3. State Organic Programs. AMS estimates 1 hour of recordkeeping
for the California State Organic Program at $47.73 per labor hour,\116\
including 31.7% benefits \117\ costing $48.
---------------------------------------------------------------------------
\116\ National Compensation Survey: Occupational Employment and
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau
of Labor Statistics, Occupational Employment and Wages, May 2021,
\116\ The labor rate for certification review staff is based on
Occupational Employment Statistics group 13-1041, Compliance
Officers. Compliance officers examine, evaluate, and investigate
eligibility for or conformity with laws and regulations governing
contract compliance of licenses and permits, and perform other
compliance and enforcement inspection and analysis activities not
classified elsewhere. https://www.bls.gov/oes/current/oes_nat.htm.
\117\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation, Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs,
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
Table 2--Summary of Recordkeeping Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Average Total
Number of recordkeeping Average hours/ Wage + respondent recordkeeping
respondents hours respondent benefits costs costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
USDA Certified Producers & Handlers--New & Existing 3,858 7,715 2 $48.49 $97 $374,101
Domestic...............................................
USDA Certified Producers & Handlers--New & Existing 2,681 5,361 2 34.95 70 187,393
Foreign................................................
Exempt Producers ((11.5% of current total certified that 713 713 1 48.49 48 34,577
are exempt from organic certification))................
-----------------------------------------------------------------------------------------------
USDA Certified Producers & Handlers--New & Existing-- 7,252 13,789 .............. .............. .............. 596,071
All................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
USDA Accredited Certifiers Recordkeeping Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
US Accredited US-Based Certifiers....................... 34 68 2 47.73 95 3,210
US Accredited Foreign-Based Certifiers.................. 23 47 2 34.40 70 1,608
-----------------------------------------------------------------------------------------------
US Certifiers--All.................................. 57 115 .............. .............. .............. 4,818
--------------------------------------------------------------------------------------------------------------------------------------------------------
State Organic Programs Recordkeeping Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
State Organic Programs.................................. 1 1 1 47.73 48 48
SOP--All............................................ 1 1.00 .............. .............. .............. 48
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Recordkeeping Burden--All Respondents......... 7,309 13,905 .............. .............. .............. 600,937
--------------------------------------------------------------------------------------------------------------------------------------------------------
AMS is inviting comments from all interested parties concerning the
information collection and recordkeeping required as a result of the
proposed amendments to 7 CFR part 205. AMS seeks comment on the
following subjects:
(1) Whether the proposed collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information would have practical utility.
(2) The accuracy of the agency's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used.
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected.
(4) Ways to minimize the burden of the collection of information on
those who are to respond, including the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology.
(5) AMS estimates that the total number of certified organic
operations will grow by 5.6% annually, based on the increase in
operations recorded in INTEGRITY during the last 12 months. Is this a
reasonable and accurate projection of future growth, given the
additional burdens imposed by this proposed rulemaking? \118\
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\118\ Organic Integrity Database: https://organic.ams.usda.gov/integrity/.
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IX. Civil Rights Impact Analysis
AMS has reviewed this proposed rule in accordance with the
Department Regulation 4300-4, Civil Rights Impact Analysis (CRIA), to
address any major civil rights impacts the rule might have on
minorities, women, and persons with
[[Page 48591]]
disabilities. After a careful review of the rule's intent and
provisions, AMS determined that this rule would only impact the organic
practices of organic producers and that this rule has no potential for
affecting producers in protected groups differently than the general
population of producers. This rulemaking was initiated to clarify a
regulatory requirement and enable consistent implementation and
enforcement.
Protected individuals have the same opportunity to participate in
the NOP as non-protected individuals. The USDA organic regulations
prohibit discrimination by certifying agents. Specifically, Sec.
205.501(d) of the current regulations for accreditation of certifying
agents provides that ``No private or governmental entity accredited as
a certifying agent under this subpart shall exclude from participation
in or deny the benefits of the National Organic Program to any person
due to discrimination because of race, color, national origin, gender,
religion, age, disability, political beliefs, sexual orientation, or
marital or family status.'' Section 205.501(a)(2) requires ``certifying
agents to demonstrate the ability to fully comply with the requirements
for accreditation set forth in this subpart'' including the prohibition
on discrimination. The granting of accreditation to certifying agents
under Sec. 205.506 requires the review of information submitted by the
certifying agent and an on-site review of the certifying agent's client
operation. Further, if certification is denied, Sec. 205.405(d)
requires that the certifying agent notify the applicant of their right
to file an appeal to the AMS Administrator in accordance with Sec.
205.681.
These regulations provide protections against discrimination,
thereby permitting all producers, regardless of race, color, national
origin, gender, religion, age, disability, political beliefs, sexual
orientation, or marital or family status, who voluntarily choose to
adhere to the rule and qualify, to be certified as meeting NOP
requirements by an accredited certifying agent. This action in no way
changes any of these protections against discrimination.
List of Subjects in 7 CFR Part 205
Administrative practice and procedure, Agricultural commodities,
Agriculture, Animals, Archives and records, Fees, Imports, Labeling,
Livestock, Organically produced products, Plants, Reporting and
recordkeeping requirements, Seals and insignia, Soil conservation.
For the reasons stated in the preamble, AMS proposes to amend 7 CFR
part 205 as set forth below:
PART 205--NATIONAL ORGANIC PROGRAM
0
1. The authority citation for part 205 continues to read as follows:
Authority: 7 U.S.C. 6501-6524.
0
2. Amend Sec. 205.2 by adding definitions for ``Beak trimming'',
``Caponization'', ``Cattle wattling'', ``De-beaking'', ``De-snooding'',
``Dubbing'', ``Indoors or indoor space'', ``Mulesing'', ``Non-
ambulatory'', ``Outdoors or outdoor space'', ``Perch'', ``Pullets'',
``Religious slaughter'', ``Soil'', ``Stocking density'', ``Toe
clipping'', and ``Vegetation'' in alphabetical order to read as
follows:
Sec. 205.2 Terms defined.
* * * * *
Beak trimming. The removal of not more than one-quarter to one-
third of the upper beak or the removal of one-quarter to one-third of
both the upper and lower beaks of a bird in order to control injurious
pecking and cannibalism.
* * * * *
Caponization. Castration of chickens, turkeys, pheasants, and other
avian species.
Cattle wattling. The surgical separation of two layers of the skin
from the connective tissue for along a 2-to-4-inch path on the dewlap,
neck, or shoulders used for ownership identification.
* * * * *
De-beaking. The removal of more than one-third of the upper beak or
removal of more than one-third of both the upper and lower beaks of a
bird.
De-snooding. The removal of the turkey snood (a fleshy protuberance
on the forehead of male turkeys).
* * * * *
Dubbing. The removal of poultry combs and wattles.
* * * * *
Indoors or indoor space. The space inside of an enclosed building
or housing structure available to livestock. Indoor space for avian
species includes, but is not limited to:
(1) Mobile housing. A mobile structure for avian species with solid
or perforated flooring that is moved regularly during the grazing
season.
(2) Aviary housing. A fixed structure for avian species that has
multiple tiers or levels.
(3) Slatted/mesh floor housing. A fixed structure for avian species
that has both:
(i) A slatted floor where perches, feed, and water are provided
over a pit or belt for manure collection; and
(ii) Litter covering the remaining solid floor.
(4) Floor litter housing. A fixed structure for avian species that
has absorbent litter covering the entire floor.
* * * * *
Mulesing. The removal of skin from the buttocks of sheep,
approximately 2 to 4 inches wide and running away from the anus to the
hock to prevent fly strike.
* * * * *
Non-ambulatory. As defined in 9 CFR 309.2(b).
* * * * *
Outdoors or outdoor space. Any area outside an enclosed building or
enclosed housing structure, including roofed areas that are not
enclosed. Outdoor space for avian species includes, but is not limited
to:
(1) Pasture pens. Floorless pens, with full or partial roofing,
that are moved regularly and provide direct access to soil and
vegetation.
(2) [Reserved]
* * * * *
Perch. A rod or branch type structure above the floor of the house
that accommodates roosting, allowing birds to utilize vertical space in
the house.
* * * * *
Pullets. Female chickens or other avian species being raised for
egg production that have not yet started to lay eggs.
* * * * *
Ritual slaughter. Slaughtering in accordance with the ritual
requirements of any other religious faith that prescribes a method of
slaughter whereby the animal suffers loss of consciousness by anemia of
the brain caused by the simultaneous and instantaneous severance of the
carotid arteries with a sharp instrument and handling in connection
with such slaughtering.
* * * * *
Soil. The outermost layer of the earth comprised of minerals,
water, air, organic matter, fungi, and bacteria in which plants may
grow roots.
* * * * *
Stocking density. The weight of animals on a given area or unit of
land.
* * * * *
Toe clipping. The removal of the nail and distal joint of the back
two toes of a bird.
* * * * *
[[Page 48592]]
Vegetation. Living plant matter that is anchored in the soil by
roots and provides ground cover.
* * * * *
0
3. Revise Sec. 205.238 to read as follows:
Sec. 205.238 Livestock care and production practices standard.
(a) Preventive health care practices. The producer must establish
and maintain preventive health care practices, including:
(1) Selection of species and types of livestock with regard to
suitability for site-specific conditions and resistance to prevalent
diseases and parasites.
(2) Provision of a feed ration sufficient to meet nutritional
requirements, including vitamins, minerals, proteins and/or amino
acids, fatty acids, energy sources, and fiber (ruminants), resulting in
appropriate body condition.
(3) Establishment of appropriate housing, pasture conditions, and
sanitation practices to minimize the occurrence and spread of diseases
and parasites.
(4) Provision of conditions which allow for exercise, freedom of
movement, and reduction of stress appropriate to the species.
(5) Physical alterations may be performed to benefit the welfare of
the animals, for identification purposes, or for safety purposes.
Physical alterations must be performed on livestock at a reasonably
young age, with minimal stress and pain and by a competent person.
(i) The following practice may not be routinely used and must be
used only with documentation that alternative methods to prevent harm
failed: needle teeth clipping (no more than top one-third of the tooth)
in pigs and tail docking in pigs.
(ii) The following practices are prohibited: de-beaking, de-
snooding, caponization, dubbing, toe clipping of chickens, toe clipping
of turkeys unless with infra-red at hatchery, beak trimming after 10
days of age, tail docking of cattle, wattling of cattle, face branding
of cattle, tail docking of sheep shorter than the distal end of the
caudal fold, and mulesing of sheep.
(6) Administration of vaccines and other veterinary biologics.
(7) All surgical procedures necessary to treat an illness shall be
undertaken in a manner that employs best management practices in order
to minimize pain, stress, and suffering, with the use of appropriate
and allowed anesthetics, analgesics, and sedatives.
(8) Monitoring of lameness and keeping records of the percent of
the herd or flock suffering from lameness and the causes.
(b) Preventive medicines and parasiticides. Producers may
administer medications that are allowed under Sec. 205.603 to
alleviate pain or suffering, and when preventive practices and
veterinary biologics are inadequate to prevent sickness. Parasiticides
allowed under Sec. 205.603 may be used on:
(1) Breeder stock, when used prior to the last third of gestation
but not during lactation for progeny that are to be sold, labeled, or
represented as organically produced; and
(2) Dairy stock, when used a minimum of 90 days prior to the
production of milk or milk products that are to be sold, labeled, or
represented as organic.
(c) Prohibited practices. An organic livestock operation must not:
(1) Sell, label, or represent as organic any animal or product
derived from any animal treated with antibiotics, any substance that
contains a synthetic substance not allowed under Sec. 205.603, or any
substance that contains a non-synthetic substance prohibited in Sec.
205.604. Milk from animals undergoing treatment with synthetic
substances allowed under Sec. 205.603 cannot be sold as organic but
may be fed to calves on the same operation. Milk from animals
undergoing treatment with prohibited substances cannot be sold as
organic or fed to organic livestock.
(2) Administer synthetic medications unless:
(i) In the presence of illness or to alleviate pain and suffering,
and
(ii) That such medications are allowed under Sec. 205.603.
(3) Administer hormones for growth promotion, production, or
reproduction, except as provided in Sec. 205.603.
(4) Administer synthetic parasiticides on a routine basis.
(5) Administer synthetic parasiticides to slaughter stock.
(6) Administer animal drugs in violation of the Federal Food, Drug,
and Cosmetic Act; or
(7) Withhold medical treatment from a sick animal in an effort to
preserve its organic status. All appropriate medications must be used
to restore an animal to health when methods acceptable to organic
production fail. Livestock treated with a prohibited substance must be
clearly identified and neither the animal nor its products shall be
sold, labeled, or represented as organically produced.
(8) Withhold individual treatment designed to minimize pain and
suffering for injured, diseased, or sick animals, which may include
forms of euthanasia as recommended by the American Veterinary Medical
Association.
(9) Neglect to identify and record treatment of sick and injured
animals in animal health records.
(10) Practice forced molting or withdrawal of feed to induce
molting.
(d) Parasite control plans.
(1) Organic livestock operations must have comprehensive plans to
minimize internal parasite problems in livestock. The plan will include
preventive measures such as pasture management, fecal monitoring, and
emergency measures in the event of a parasite outbreak. Parasite
control plans shall be approved by the certifying agent.
(2) [Reserved]
(e) Euthanasia.
(1) Organic livestock operations must have written plans for
prompt, humane euthanasia for sick or injured livestock.
(2) The following methods of euthanasia are not permitted:
suffocation; manual blow to the head by blunt instrument or manual
blunt force trauma; and the use of equipment that crushes the neck,
including killing pliers or Burdizzo clamps.
(3) Following a euthanasia procedure, livestock must be carefully
examined to ensure that they are dead.
0
4. Revise Sec. 205.239 to read as follows:
Sec. 205.239 Mammalian livestock living conditions.
(a) The producer of an organic livestock operation must establish
and maintain year-round livestock living conditions, which accommodate
the wellbeing and natural behavior of animals, including:
(1) Year-round access for all animals to the outdoors, shade,
shelter, exercise areas, fresh air, clean water for drinking, and
direct sunlight, suitable to the species, its stage of life, the
climate, and the environment: Except, that, animals may be temporarily
denied access to the outdoors in accordance with paragraphs (b) and (c)
of this section. Yards, feeding pads, and feedlots may be used to
provide ruminants with access to the outdoors during the non-grazing
season and supplemental feeding during the grazing season. Yards,
feeding pads, and feedlots shall be large enough to allow all ruminant
livestock occupying the yard, feeding pad, or feedlot to feed without
competition for food. Continuous total confinement of any animal
indoors is prohibited. Continuous total confinement of ruminants in
yards, feeding pads, and feedlots is prohibited.
(2) For all ruminants, management on pasture and daily grazing
throughout the grazing season(s) to meet the requirements of Sec.
205.237, except as provided for in paragraphs (b), (c), and (d) of this
section.
[[Page 48593]]
(3) Appropriate clean, dry bedding. When roughages are used as
bedding, they shall have been organically produced in accordance with
this part by an operation certified under this part, except as provided
in Sec. 205.236(a)(2)(i), and, if applicable, organically handled by
operations certified to the NOP.
(4) Shelter designed to allow for:
(i) Over a 24-hour period, sufficient space and freedom to lie
down, turn around, stand up, fully stretch their limbs, and express
normal patterns of behavior;
(ii) Temperature level, ventilation, and air circulation suitable
to the species;
(iii) Reduction of potential for livestock injury; and
(iv) If indoor housing is provided, areas for bedding and resting
that are sufficiently large, solidly built, and comfortable so that
animals are kept clean, dry, and free of lesions.
(5) The use of yards, feeding pads, feedlots and laneways that
shall be well-drained, kept in good condition (including frequent
removal of wastes), and managed to prevent runoff of wastes and
contaminated waters to adjoining or nearby surface water and across
property boundaries.
(6) Housing, pens, runs, equipment, and utensils shall be properly
cleaned and disinfected as needed to prevent cross-infection and build-
up of disease-carrying organisms.
(7) Dairy young stock may be housed in individual pens until
completion of the weaning process but no later than 6 months of age,
provided that they have enough room to turn around, lie down, stretch
out when lying down, get up, rest, and groom themselves; individual
animal pens shall be designed and located so that each animal can see,
smell, and hear other calves.
(8) Swine must be housed in a group, except:
(i) Sows may be housed individually at farrowing and during the
suckling period;
(ii) Boars; and
(iii) Swine with documented instance of aggression or recovery from
an illness.
(9) Piglets shall not be kept on flat decks or in piglet cages.
(10) For swine, rooting materials must be provided, except during
the farrowing and suckling period.
(11) In confined housing with stalls for mammalian livestock,
enough stalls must be present to provide for the natural behaviors of
the animals. A cage must not be called a stall. For group-housed swine,
the number of individual feeding stalls may be less than the number of
animals, as long as all animals are fed routinely over a 24-hour
period. For group-housed cattle, bedded packs, compost packs, tie-
stalls, free-stalls, and stanchion barns are all acceptable housing as
part of an overall organic system plan.
(12) Outdoor space must be provided year-round. When the outdoor
space includes soil, maximal vegetative cover must be maintained as
appropriate for the season, climate, geography, species of livestock,
and stage of production.
(b) The producer of an organic livestock operation may provide
temporary confinement or shelter for an animal because of:
(1) Inclement weather;
(2) The animal's stage of life, however, lactation is not a stage
of life that would exempt ruminants from any of the mandates set forth
in this part;
(3) Conditions under which the health, safety, or well-being of the
animal could be jeopardized;
(4) Risk to soil or water quality;
(5) Preventive healthcare procedures or for the treatment of
illness or injury (neither the various life stages nor lactation is an
illness or injury);
(6) Sorting or shipping animals and livestock sales, provided that
the animals shall be maintained under continuous organic management,
including organic feed, throughout the extent of their allowed
confinement;
(7) Breeding: Except, that, animals shall not be confined any
longer than necessary to perform the natural or artificial
insemination. Animals may not be confined to observe estrus; and
(8) 4-H, National FFA Organization, and other youth projects, for
no more than one week prior to a fair or other demonstration, through
the event, and up to 24 hours after the animals have arrived home at
the conclusion of the event. These animals must have been maintained
under continuous organic management, including organic feed, during the
extent of their allowed confinement for the event. Notwithstanding the
requirements in paragraph (b)(6) of this section, facilities where 4-H,
National FFA Organization, and other youth events are held are not
required to be certified organic for the participating animals to be
sold as organic, provided all other organic management practices are
followed.
(c) The producer of an organic livestock operation may, in addition
to the times permitted under paragraph (b) of this section, temporarily
deny a ruminant animal pasture or outdoor access under the following
conditions:
(1) One week at the end of a lactation for dry off (for denial of
access to pasture only), three weeks prior to parturition (birthing),
parturition, and up to one week after parturition;
(2) In the case of newborn dairy cattle for up to six months, after
which they must be on pasture during the grazing season and may no
longer be individually housed: Except, That, an animal shall not be
confined or tethered in a way that prevents the animal from lying down,
standing up, fully extending its limbs, and moving about freely;
(3) In the case of fiber bearing animals, for short periods for
shearing; and
(4) In the case of dairy animals, for short periods daily for
milking. Milking must be scheduled in a manner to ensure sufficient
grazing time to provide each animal with an average of at least 30
percent DMI from grazing throughout the grazing season. Milking
frequencies or duration practices cannot be used to deny dairy animals
pasture.
(d) Ruminant slaughter stock, typically grain finished, shall be
maintained on pasture for each day that the finishing period
corresponds with the grazing season for the geographical location.
Yards, feeding pads, or feedlots may be used to provide finish feeding
rations. During the finishing period, ruminant slaughter stock shall be
exempt from the minimum 30 percent DMI requirement from grazing. Yards,
feeding pads, or feedlots used to provide finish feeding rations shall
be large enough to allow all ruminant slaughter stock occupying the
yard, feeding pad, or feed lot to feed without crowding and without
competition for food. The finishing period shall not exceed one-fifth
(1/5) of the animal's total life or 120 days, whichever is shorter.
(e) The producer of an organic livestock operation must manage
manure in a manner that does not contribute to contamination of crops,
soil, or water by plant nutrients, heavy metals, or pathogenic
organisms and optimizes recycling of nutrients and must manage pastures
and other outdoor access areas in a manner that does not put soil or
water quality at risk.
0
5. Add Sec. 205.241 to read as follows:
Sec. 205.241 Avian living conditions.
(a) Avian year-round living conditions. The producer of an organic
poultry operation must establish and maintain year-round poultry living
conditions that accommodate the health and natural behavior of poultry,
including: year-round access to outdoors; shade; shelter; exercise
areas; fresh air; direct sunlight; clean water for drinking; materials
for dust bathing; and adequate outdoor space to escape
[[Page 48594]]
aggressive behaviors suitable to the species, its stage of life, the
climate, and environment. Poultry may be temporarily denied access to
the outdoors in accordance with paragraph (d) of this section.
(b) Indoor space requirements.
(1) Poultry housing must be sufficiently spacious to allow all
birds to move freely, stretch their wings, stand normally, and engage
in natural behaviors.
(2) Producers must monitor ammonia levels at least monthly and
implement practices to maintain ammonia levels below 10 ppm. When
ammonia levels exceed 10 ppm, producers must implement additional
practices and additional monitoring to reduce ammonia levels below 10
ppm. Ammonia levels must not exceed 25 ppm.
(3) For layers and fully feathered birds, artificial light may be
used to prolong the day length, to provide up to 16 hours of continuous
light. Artificial light intensity must be lowered gradually to
encourage hens to move to perches or settle for the night.
(4) Exit areas--poultry houses must have sufficient exit areas that
are appropriately distributed to ensure that all birds have ready
access to the outdoors; producers subject to requirements in 21 CFR
part 118 Production, Storage, and Transportation of Shell Eggs must
take steps to prevent stray poultry, wild birds, cats, and other
animals from entering poultry houses.
(5) Perches--for layers (Gallus gallus), six inches of perch space
must be provided per bird. Perch space may include the alighting rail
in front of the nest boxes. All layers must be able to perch at the
same time except for aviary housing, in which 55 percent of layers must
be able to perch at the same time.
(6) All birds must have access to areas in the house that allow for
scratching and dust bathing. Litter must be provided and maintained in
a dry condition.
(7) Houses with slatted/mesh floors must have 30 percent minimum of
solid floor area available with sufficient litter available for dust
baths so that birds may freely dust bathe without crowding.
(8) For layers (Gallus gallus), indoor stocking density must not
exceed (live bird weight):
(i) Mobile housing: 4.5 pounds per square foot.
(ii) Aviary housing: 4.5 pounds per square foot.
(iii) Slatted/mesh floor housing: 3.75 pounds per square foot.
(iv) Floor litter housing: 3.0 pounds per square foot.
(v) Other housing: 2.25 pounds per square foot.
(9) For pullets (Gallus gallus), indoor stocking density must not
exceed 3.0 pounds of bird per square foot.
(10) For broilers (Gallus gallus), indoor stocking density must not
exceed 5.0 pounds of bird per square foot.
(11) Indoor space includes flat areas available to birds, excluding
nest boxes.
(12) Indoor space may include enclosed porches and lean-to type
structures (e.g., screened in, roofed) as long as the birds always have
access to the space, including during temporary confinement events. If
birds do not have continuous access to the porch during temporary
confinement events, this space must not be considered indoors.
(c) Outdoor space requirements.
(1) Access to outdoor space and door spacing must be designed to
promote and encourage outside access for all birds on a daily basis.
Producers must provide access to the outdoors at an early age to
encourage (i.e., train) birds to go outdoors. Birds may be temporarily
denied access to the outdoors in accordance with Sec. 205.241(d).
(2) At least 50 percent of outdoor space must be soil. Outdoor
space with soil must include maximal vegetative cover appropriate for
the season, climate, geography, species of livestock, and stage of
production. Vegetative cover must be maintained in a manner that does
not provide harborage for rodents and other pests.
(3) Shade may be provided by structures, trees, or other objects in
the outdoor area.
(4) For layers (Gallus gallus), outdoor space must be provided at a
rate of no less than one square foot for every 2.25 pounds of bird in
the flock.
(5) For pullets (Gallus gallus), outdoor space must be provided at
a rate of no less than one square foot for every 3.0 pounds of bird in
the flock.
(6) For broilers (Gallus gallus), outdoor space must be provided at
a rate of no less than one square foot for every 5.0 pounds of bird in
the flock.
(7) Outdoor space may include porches and lean-to type structures
that are not enclosed (e.g., with roof, but with screens removed) and
allow birds to freely access other outdoor space.
(d) Temporary confinement. The producer of an organic poultry
operation may temporarily confine birds. Confinement must be recorded.
Operations may temporarily confine birds when one of the following
circumstances exists:
(1) Inclement weather, including when air temperatures are under 40
degrees F or above 90 degrees F.
(2) The animal's stage of life, including:
(i) The first 4 weeks of life for broilers (Gallus gallus);
(ii) The first 16 weeks of life for pullets (Gallus gallus); and
(iii) Until fully feathered for bird species other than Gallus.
(3) Conditions under which the health, safety, or well-being of the
animal could be jeopardized.
(4) Risk to soil or water quality, including to establish
vegetation by reseeding the outdoor space.
(5) Preventive healthcare procedures or for the treatment of
illness or injury (neither various life stages nor egg laying is an
illness or injury).
(6) Sorting or shipping birds and poultry sales, provided that the
birds are maintained under continuous organic management, throughout
the extent of their allowed confinement.
(7) For nest box training, provided that birds shall not be
confined any longer than required to establish the proper behavior.
Confinement must not exceed five weeks over the life of the bird.
(8) For 4-H, National FFA Organization, and other youth projects,
provided that temporary confinement for no more than one week prior to
a fair or other demonstration, through the event, and up to 24 hours
after the birds have arrived home at the conclusion of the event.
During temporary confinement, birds must be under continuous organic
management, including organic feed, for the duration of confinement.
Notwithstanding the requirements in paragraph (d)(6) of this section,
facilities where 4-H, National FFA Organization, and other youth events
are held are not required to be certified organic for the participating
birds to be sold as organic, provided all other organic management
practices are followed.
(e) Manure management. The producer of an organic poultry operation
must manage manure in a manner that does not contribute to
contamination of crops, soil, or water by plant nutrients, heavy
metals, or pathogenic organisms. The producer must also optimize
recycling of nutrients and must manage outdoor access in a manner that
does not put soil or water quality at risk.
0
6. Add Sec. 205.242 to read as follows:
Sec. 205.242 Transport and slaughter.
(a) Transportation.
(1) Certified organic livestock must be clearly identified as
organic, and this identity must be traceable for the duration of
transport.
[[Page 48595]]
(2) All livestock must be fit for transport to buyers, auction or
slaughter facilities.
(i) Calves must have a dry navel cord and be able to stand and walk
without human assistance.
(ii) Non-ambulatory animals must not be transported for sale or
slaughter. Such animals may be medically treated or euthanized.
(3) Adequate and season-appropriate ventilation is required for all
livestock trailers, shipping containers, and any other mode of
transportation used to protect animals against cold and heat stresses.
(4) Bedding must be provided on trailer floors and in holding pens
as needed to keep livestock clean, dry, and comfortable during
transport and prior to slaughter. Bedding is not required in poultry
crates. When roughages are used for bedding, they must be certified
organic.
(5) Arrangements for water and organic feed must be made if
transport time, including all time on the mode of transportation,
exceeds 12 hours.
(i) The producer or handler of an organic livestock operation, who
is responsible for overseeing the transport of organic livestock, must
provide records to certifying agents during inspections or upon request
that demonstrate that transport times for organic livestock are not
detrimental to the welfare of the animals and meet the requirements of
paragraph (a)(5) of this section.
(ii) [Reserved]
(6) Organic producers and handlers, who are responsible for
overseeing the transport of organic livestock, must have emergency
plans in place that adequately address possible animal welfare problems
that might occur during transport.
(b) Mammalian slaughter.
(1) Producers and handlers who slaughter organic livestock must be
in compliance, as determined by FSIS, with the Federal Meat Inspection
Act (21 U.S.C. 603(b) and 21 U.S.C. 610(b)), the regulations at 9 CFR
part 313 regarding humane handling and slaughter of livestock, and the
regulations of 9 CFR part 309 regarding ante-mortem inspection.
(2) Producers and handlers who slaughter organic exotic animals
must be in compliance with the Agricultural Marketing Act of 1946 (7
U.S.C. 1621, et seq.), the regulations at 9 CFR parts 313 and 352
regarding the humane handling and slaughter of exotic animals, and the
regulations of 9 CFR part 309 regarding ante-mortem inspection.
(3) Producers and handlers who slaughter organic livestock or
exotic animals must provide all noncompliance records related to humane
handling and slaughter issued by the controlling national, federal, or
state authority and all records of subsequent corrective actions to
certifying agents during inspections or upon request.
(c) Avian slaughter.
(1) Producers and handlers who slaughter organic poultry must be in
compliance, as determined by FSIS, with the Poultry Products Inspection
Act requirements (21 U.S.C. 453(g)(5)); the regulations at paragraph
(v) of the definition of ``Adulterated'' in 9 CFR 381.1(b), and 9 CFR
381.90, and 381.65(b)); and FSIS Directives 6100.3 and 6910.1.
(2) Producers and handlers who slaughter organic poultry must
provide all noncompliance records related to the use of good
manufacturing practices in connection with slaughter issued by the
controlling national, federal, or state authority and all records of
subsequent corrective actions to the certifying agent at inspection or
upon request.
(3) Producers and handlers who slaughter organic poultry, but are
exempt from or not covered by the requirements of the Poultry Products
Inspection Act, must ensure that:
(i) No lame birds may be shackled, hung, or carried by their legs;
(ii) All birds shackled on a chain or automated system must be
stunned prior to exsanguination, with the exception of ritual
slaughter; and
(iii) All birds must be irreversibly insensible prior to being
placed in the scalding tank.
Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2022-16980 Filed 8-5-22; 8:45 am]
BILLING CODE 3410-02-P
